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IP ADMINISTRATION AND ENFORCEMENT SYSTEM TOWARDS MODERNIZATION OF IP PROTECTION IN BANGLADESH-AND A COMPERATIVE ANALYSIS OF IP ADMINISTRATION BETWEEN JAPAN AND BANGLADESH Md. Farhad Hossain Khan Government of the People’s Republic of Bangladesh WIPO FUND-IN-TRUST/ JAPAN RESEARCH FELLOWSHIP PROGRAM April 01 to September 30, 2004. Supervised by: Mr. Yoshitoshi Tanaka, Associate Professor, Tokyo Institute of Technology (TIT), Japan. 2 Table of Contents Sl.no. Contents Page *** Acknowledgement……………………………………………………….. 3 1 Introduction……………………………………………………………. 4 2 IP Situation in Bangladesh and IP Law System…………………….…. 5 2.1. Provisions of some Sections in the draft Act, 2003…………………… 7 2.2. Public Awareness………………………………………………..………. 8 2.3. International agreement and some recent initiatives taken by the government…………………………………………………………….. 9 2.4. Enforcement……………………………………………………………. 10 3. Japanese Patent Law system…………………………………………….. 11 3.1. Situation in Japan……………………………….……………………….. 13 3.2. Recent strategy taken by the Japanese government…..…………………. 14 3.3 Awareness buildup………………………………………………………. 15 3.4. The current significance of IP Culture………………………………… 17 3.5. The necessity of IP Culture, and Related key issues…………………….. 17 3.5.1. IP Culture as a corporate strategy …………………………………….. 17 3.5.2. IP Culture as a strategy for Economic Development………………….. 18 3.5.3. Youth and IP Culture…………………………………………………… 18 3.5.4. IP Culture Supported by Society as a whole…………………………… 18 3.6. IP Initiatives……………………………………………………………. 18 3.6.1. Fostering Human Resources…………………………………………… 18 3.6.2. Preparing a Social Foundation……………………………………….… 19 3.6.3. Coordination and Cooperation among Related Organizations and Associations………………………………………………..……. 19 3.5.4. Expansions for the World Intellectual Property Organization and other Institutional Organizations…………………………………………….. 19 4. Definition of Invention………………………………………………… 19 4.1. Patentability of Invention………………………………………………. 20 4.2. Non-Patentable Inventions…………………………………………….. 21 4.3. Industrial Applicability/Utility…………………………………………. 23 4.4. Novelty and Priority…………………………………………………… 24 4.5. Inventive Step / Non-Obviousness……………………………………… 29 4.6. Prior Art Effect…………………………………………………………. 31 5. Documents required for filing patent applications……..…..…………... 32 5.1. Patent Prosecution (JPO)………………………………………………… 35 5.2. Patent Granting Procedure in DPDT:…………. …………………………..… 43 6. Publication / Laying-open of an Application…………………………….. 49 6.1. Publication & Opposition (DPDT)…………………………………………. 50 7. The patent right and time limit for grant and sealing of a patent……… 53 8. Term of patent right……..……………………………………………… 55 9. Patent of Addition………………………………………………………… 56 10. Trial………………………………………………………………………. 58 Conclusion………………………………………………………………. 60 *** Reference 62 3 Acknowledgement I gratefully acknowledge the financial support during my study, from the World Intellectual Property Organization (WIPO) Authority and to the Government of Japan, especially to the Japan Patent Office (JPO), and the Asia-Pacific Industrial Property Center (APIC) of Japan Institute of Invention and Innovation (JIII) for organizing this course respectively; My special thanks to all the officers of JPO especially Mr. Hiroshi Ogawa, Commissioner of JPO, Mr. Yasuo Imai, Ex Commissioner of JPO, Mr. Shinjiro Ono, Deputy Commissioner of JPO. First, and foremost, I would like to thank Mr. Yoshitoshi Tanaka, Associate Professor of Tokyo Institute of Technology (TIT), despite the many demands on his time, Mr. Tanaka spent countless hours with me sketching out ideas on the whiteboard, discussing ways to deal with and also offered more insight time, and support than I ever had a right to expect. I respect Mr. Tanaka and I am deeply grateful for the advice and friendship that he has shared with me throughout the endeavor. I have learned a lot from working under his direct supervision and sincerely appreciate his kindness, willingness to devote significant time and insights to this study, Mr. Kiyoshi Yonetsu, Director of International Affairs Division, Mr. Takashi Sakurai, Ex Director of International Affaires Division, Mr. Hiroo Takaki, Deputy Director of International Affairs Division and Ms. Kanako Yanagawa, I appreciate the advice and kindness they shared with me during my studies. I extended special thanks to Ms. Yuka Tsukamoto, Ms. Sayaka ONO of JPO for worm welcome and continuous assistance patience, time and friendship; My special thanks to Mr. Fumitake Yoshida, President of JIII, all staff members of APIC-JIII, especially Mr. Shingo Tsuji, Director General of APIC, Mr. Tetsuo Niwa, Mr. Toshiyasu Matsutani, Ms.Aiko Imayama, Ms. Kazuko Kinoshita and many others for their warm welcome and providing me good conditions and assistance for carrying out the research work. My sincere thanks to my colleagues in the Department of Patents, Designs and Trademarks, for their support and patience; Finally, and most importantly, I would like to thank my mother and wife for their support, patience, and understanding. 4 Introduction: During the period of my research work on IP administration in Japan, I was interested to know about the IP situation and the various policy and IP strategy undertaken by the Japanese government. Since Japan has taken strategy to make “an intellectual property based-nation” I was interested to highlight the IP situation in Bangladesh and the recent initiative taken by the government of Bangladesh although the practical situation in Bangladesh is quite different. Mainly depending on agro based economy with area of 143, 998-km2, Bangladesh got, about, 140,000,000 number of such a big population. But in fact, depending only on the agricultural products, economical development of the country is quite impossible. From the agricultural product, the people only can have simple food. On the other hand, the situation of industries in Bangladesh can easily be well understood, from the number of patent applications filed. Only around 300 patent applications are being filed, each year, where, about 85% of these applications are being filed from foreign countries and the rest 15% are originated from national filings. Comparing this (300) figure with the 413,092 number of patent applications, filed during 2003 in the Japanese patent Office (according to JPO Status Report, April, 2004), it is easy, to realize the present situation of industrial sector, as well as the situation of intellectual property in Bangladesh. Considering the present day needs industrial development is very important and there is no alternate for economic growth. (JPO Annual Report, 2003) In the recent years, the technological reforms are progressing rapidly due to saturated information relating to intellectual property rights such as patents, designs, trademarks, confidential business information, copyrights and related rights and almost all inventive and innovative processes depend in some way on the internet and e-commerce which is fueled by IP system. The World Intellectual Property Organization (WIPO) and some other organizations have made it possible to strengthen the protection of intellectual property rights and also created an integrated system designed to protect intellectual property rights in each country as well as increased competitions among countries and industries in each country through treaties, various international meetings, and similar activities. As a part of WIPO’s mandate to assist its member states, it continues to be active in seeking further harmonization of international patent laws, reform of the Patent Cooperation Treaty and deeper examination of global IP issues such as traditional knowledge, genetic resources and folklore. Strong intellectual property protection with adequate and modernized legislation and its effective enforcement is essential for ensuring economic growth. Since the technologies of various fields 5 are transferred from one country to another through patent system and the patent documents / specifications contains such technologies, and if these technologies which are being filed in Bangladesh for patent rights, from industrially developed countries, can be utilized by the R&D institutions (after getting patent rights), for R&D activities and may also be utilized in private companies for industrial development, then country like Bangladesh, in future can become an industrially developed as well as economically developed country by utilizing such technologies. Although, Intellectual Property (IP), play a vital / key role for the technological as well as economical development of a country, but it is hard fact that in Bangladesh the Patents and Designs Act, 1911, that was originated from British Law, is still enforced. It is true that though it is late but not last, during the first quarter of this year, 2004, a new draft of Patents and Designs Act, 2003 is finalized by the Law Commission of Bangladesh in cooperation with World Intellectual Property Organization (WIPO), which is under process to place before the Parliament. Nowadays, there is a growing awareness that intellectual property rights protection is a crucial part for technological development as well as for the new global trading system. Industrial development is one of the principal forces contributing to a rich daily life. All the rich and industrially developed countries in the world have their, national strong Intellectual Property (IP) laws, like U.S.A., Japan UK. etc., and which plays a key role for their technological, industrial and economic development. The social,