The short answer
Under Section 36 of the Bangladesh Patent Act, 2023, anyone can apply to the Director General at any time for a compulsory licence on listed grounds such as public interest, anti-competitive use, abuse of exclusive rights, non-working in Bangladesh, a dependent patent, refusal to licence within 4 months, or access to essential services. The Director General decides within 6 months, and the patent owner is paid remuneration of up to 4% of total sales (Section 37). Separate rules cover emergency licences (Section 38), pharmaceutical exports (Section 39) and government use (Section 40).
Grounds for a compulsory licence (Section 36(1))
| Ground | What it covers |
|---|---|
| Public interest | Especially national security, nutrition, health or national economic development |
| Anti-competitive use | A court or executive authority finds that the owner or a licensee uses the invention anti-competitively, including abuse of a dominant position |
| Abuse of exclusive rights | The invention does not meet the reasonable needs of the public, or is not available at an affordable price |
| Not worked locally | The invention is not worked in Bangladesh except through imports, and the owner cannot show it is not economically or technically feasible to produce here |
| Dependent patent | A second patent claims an important technical advance that cannot be used without infringing the first |
| Refusal to license | The owner refuses a licence without good reason within 4 months of the request |
| Essential services | Access to essential facilities, including medicines in fixed-dose combination |
How a compulsory licence is granted (Sections 36 and 37)
Ask for a voluntary licence first
- The applicant must first try to obtain a licence from the owner on reasonable commercial terms. If that fails within a reasonable time, the application can proceed (this step does not apply to the anti-competition ground).
Apply to the Director General
- The Director General sends the owner a copy. The owner can oppose within the prescribed time, and both sides are heard.
Decision within 6 months
- The Director General can grant the licence with conditions and sets remuneration of not more than 4% of total sales (Section 37(4)).
Terms of the licence
- It is non-exclusive and not transferable, except with the part of the business or goodwill that uses it. It mainly serves the domestic market (Section 36(5), (6)).
- Non-working: no licence on this ground before 4 years from filing or 3 years from grant, whichever is later, unless the owner cannot show a good reason (Section 36(4)).
- Semiconductors: licences are only for non-commercial use, or to remedy anti-competitive conduct (Section 36(7)).
- Ending a licence: the owner can ask the Director General to end it if the need has ended, or if the licensee breaches its terms (Section 37(6)).
Emergency, export and government use
| Section | What it allows |
|---|---|
| 38 Notified licence | In a national emergency or extreme urgency, or for non-commercial government use, the Government can declare by Gazette notification that licences are available. The Director General grants a licence on application and decides within 60 days |
| 39 Pharmaceutical export | A compulsory licence to make and export patented pharmaceutical products, including diagnostic kits, to countries that lack sufficient manufacturing capacity |
| 40 Government use | The Government, or a person it authorises, can use an invention for its needs at any time after an application is filed or a patent is granted. Anyone may apply to the Government, which decides within 60 days after a hearing. The owner is paid up to 4% of fair sales |
| 41 Data and know-how | The owner can be directed to supply data and test results to the licensee; regulatory agencies can be directed to provide them if the owner refuses |
No injunction can be granted against acts done under these provisions (Section 48), and the Director General's decisions can be appealed to the High Court Division within 2 months (Section 52).
Compulsory licence questions
Who can apply for a compulsory licence?
Any person, at any time, on a ground in Section 36(1).
How long does the Director General have to decide?
Six months from the application (Section 36(2)); 60 days for a notified emergency licence (Section 38).
How much must be paid to the owner?
Remuneration of not more than 4% of total sales (Section 37(4)); for government use up to 4% of fair sales (Section 40).
Is the licence exclusive?
No. A non-working licence is not exclusive and not transferable (Section 36(5)).
Can medicines be exported under it?
Yes, to countries without sufficient manufacturing capacity, under Section 39.
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