#Title

Law Vision
Promoting local innovation for public health
Taslima Jahan and Imtiaz Ahmed Sajal
With the coronavirus crisis going on, the world is undergoing rapid transformation and multidimensional changes in the discourse of global politics and governance. Within weeks and months Covid-19 unfolded the unequal, insufficient and fragile system of public health of a number of developed and developing countries. Similarly, it also unearths major causes like the absence of agro-ecological development trend ignored in whole process of industrial development. Under the breakdown of economy most of the governments are now looking back to the management of health rights and food safety to meet secure health of their citizens.
Now, at this moment of global epidemic, we have to rethink our development model and strategy that we have followed in the course of our development endeavours, and how far those policy measures are fit for the large number of people in Bangladesh. Coming to the point of regulatory regime of intellectual property rights– the real impact and extent of which for the common people is far beyond our imagination. Under the Trade Related Aspect of Intellectual Property Rights (TRIPS) Agreement, WTO members have substantial scope to tailor their procedures to intellectual property protection and enforcement in accommodating their priorities and achieving public policy objectives. Thus, Bangladesh needs to take cautious approach in legal and policy development of intellectual property rights that might be conducive to human rights, social welfare and economic growth. In ongoing transition process Bangladesh has already enacted laws for Copyrights, Trademark, Geographical Indications, Plant Varieties Protection as well as progressing Patent Act according to the standard of TRIPS Agreement. In compliance with the WTO’s trade rules and particularly TRIPS, Bangladesh has to provide indiscriminate national treatment protection to each and every foreign party in trade of intellectual property.
Besides that, except in pharmaceutical product (ten years waiver up to 2033) Bangladesh will be exempted from the benefit of Article 66 of TRIPS from 2024 on its graduation from the least developed country to a developing country. It means once Bangladesh is promoted, it will lose the right to access to any patented technology and know-how cooperation from the developed countries to create the base of own technology and development in hand. Now question arises how much our local public and private stakeholders, enterprises of technology are sure about the creation of sound and viable local technological base within next few years, adequate to run independently despite foreign aid or technical assistance? As for now, we are very pleased with our local technology: Walton showed capabilities on production of ventilator as well our pharmaceutical (Beximco, Beacon, Incepta) are supplying drugs using knowledge and technology of Gilead for Remdisivir and Fuji for Avigan drugs. But question arises how much our local pharmaceutical and technology based industries are capable to produce and supply drug or any necessary product independently without interference of foreign technical knowledge? It is alarming that most of our private enterprises depending on technology are not aware about intellectual property rights on patented products or processes.
In post-graduation, Bangladesh has to facilitate patent protection to patent owner which will restrict any third parties to sell, use, produce, reproduce, import or export any patented product or process (TRIPS, Article 28) in absence of permission or license from the Patent Owners. Again, the question comes as to how much our local industries are getting smart to bargain specially in terms of economic cost to pay for license from global corporations or patent owners. Another point is that, Patent has to be given indiscriminately for any technological advancement in any product which is novel, having inventive step and industrial applicability according to TRIPS (Article 27). As for post 1970 most of the developed countries granted patents in biotechnology-based products (medicine, seeds) occurred on plants and animals. Bangladesh has obligation as well as flexibilities in determining what and which subject of bio-invention will be patented and what invention will be incentivised to trigger our development.
With the severity of health and food crisis ahead, Bangladesh cautiously got permission to reproduce drugs to face coronavirus. For now, it requires concerns from the government agencies, policy makers, local industries, market regulators and civil society members to come together on inclusion of TRIPS in Bangladesh. To get access to technology, Bangladesh will get additional five years transitional period up to enforcement of Patent Act. Like our neighboring India introduced product patent in 2005 with different amendment on subject-matter of patent. Before the necessary changes Bangladesh should use the flexibilities open under Articles 7, 8 and 66 of TRIPS Agreement. Bangladesh should adopt eco-friendly technology that might protect our bio-diversity, public interest along with continuous productive capacity of research, education and maximum knowledge sharing among local industries as they become self-reliant in development of future technology. In our practice, innovation leading research is negligible and most of the technologies are locked in foreign knowledge. To that case, Bangladesh can take resort of “WTO forum for Global Technology Pool for Climate Change” arranged for developing countries as to avail effective technology transfer from developed countries.
Moreover, as per the provision of Article 66, we need to monitor and assess whether our local industries are getting access to knowledge and skill which is adequate in mode for carrying out the existing invention, know-how, technology used through skillful local adoption in continuance of reproduction, sale and export of developed product. Another separate but important point is, our agriculture is carrying 8-10% GDP in a year and booming on dependent technologies. Plant bio-diversity and immense traditional knowledge conserved in indigenous seeds variety, plants and farming methods are as of yet unprotected for open exploitation by different local and foreign corporations. To break the dependency, for food sovereignty and health, Bangladesh immediately needs to develop mass awareness and enact necessary laws supportive to protect local innovation related to bio-diversity through local community– farmers. It also needs to disburse knowledge and sharing about intellectual property knowledge in each level of education as to future innovation, research and entrepreneurship to combat with intellectual property rights that might be friendly for our nature, society and economy.
The writers are lecturers in law at the United International University, Dhaka and the Bangladesh Army International University of Science and Technology, Cumilla respectively.
Bangladesh should adopt eco-friendly technology that might protect our bio-diversity, public interest along with continuous productive capacity of research, education and maximum knowledge sharing among local industries.