Nur - E - Sohitun Jahan: “When a patent meant to protect innovation, becomes a tool to delay competition, we must ask whether the patent system is serving it’s intended purpose or allowing monopoly through an expanding web of exclusive rights.”

Imagine a scientist invents a medicine that treats a serious disease, a patent can give him a temporary legal right to stop others from making, using or selling the patented invention without permission and in return the inventor must disclose the invention publicly allowing others to use the invention once the patent expires.

But what if the company holding the original patent begins to build secondary patents covering different aspects of the same medicine, e.g., it’s formulation, dosage, system of delivery, new manufacturing process, chemical variations etc.

But when a competing manufacturer wants to make more affordable version of the medicine, before entering the market, he has to examine this complex web of multiple patents, identify which patent protection still remain in force, whether it can legally manufacture and sell the medicine without permission. Which means even after the original patent expires other enforceable patents may still create legal obstacles to competition.

This is the problem commonly associated with a ‘Patent Thicket,’ a web of overlapping patents surrounding an invention making it difficult for competitors to enter market.

One of the most prominent examples of pharmaceutical patent thickets is ‘Humira’ (adalimumab), a biologic medicine used to treat several inflammatory conditions, A 2024 study published in JAMA Internal Medicine examined the patent portfolios of ten top-selling prescription drugs in the United States of which Humira was associated with 134 active patents as of June 30, 2022.

A study published in Energy Policy in 2026 examined 2,667 listed Chinese companies over the period 2015-2021 and found that patent thickets were associated with increased internal green innovation within these companies.

Such patents related to pharmaceuticals & green technologies are not automatically improper, genuine improvements may deserve protection. Nevertheless, the accumulation of overlapping patents raises a fundamental question, ‘To what extent can  accumulation of secondary patents delay the entry of competing products even after the original patent has expired?’

Patent Thickets in The Context of Bangladesh:

Article 18(1) of the Constitution of People’s Republic of Bangladesh, places the improvement of public health among the State's primary duties. Article 19(2) directs the State to reduce social and economic inequality and ensure equitable distribution of wealth. But when competing medicine and green technology manufacturers cannot enter the market easily due to the overlapping patent barriers, patients may face higher prices of life-saving medicines, fewer treatment options, limited option of cheaper green technologies, e.g., an efficient solar component or a technology that reduces industrial emissions. These circumstances raise public health concerns undermining state’s constitutional responsibility to improve public health and disproportionately affect the lower income consumer who depend on affordable products and services.

Historically, Bangladesh did not suffer from local patent thickets. As a Least Developed Country (LDC), Bangladesh enjoyed broad exemptions under the WTO’s TRIPS Agreement,1995. Local manufacturers, particularly in the pharmaceutical sector, were legally allowed to reverse-engineer and produce expensive global drugs without paying royalties or worrying about patent infringement. Historically, the Department of Patents, Industrial Designs, and Trademarks (DPDT) used a “mailbox” registry to temporarily hold patent applications submitted by foreign companies during the LDC waiver period. But now as waiver period is about phase out,local drug companies may suddenly find themselves walking into a web of newly activated overlapping patent thickets.

 What Protections Are Given Against Patent Thickets under Bangladeshi Law?

The Bangladesh Patent Act, 2023.Section 6 provides several safeguards against Patent Thickets by excluding certain subject matters from patent protection. In particular, Section 6(1)(d) excludes new uses or method of uses of known products, while Section 6(1)(o) excludes the discovery of known substances in new forms or discovery of a new use of a known process unless such process produces a new product. It’s explanation specifically includes salts, esters, ethers, polymorphs, metabolites, pure forms, particle sizes, isomers and other derivatives obtained from known substances shall be treated as the same substance. Althoughthese exclusions restrict attempts to obtain additional patents merely by making certain modifications to existing medicines. However, the law does not expressly establish a separate requirement of enhanced therapeutic efficacy for secondary pharmaceutical patents, unlike Section 3(d) of the Indian Patents Act, 1970, which rejects secondary patents on minor modifications unless they show significant ‘therapeutic efficacy’. Nor does it specifically require clinical evidence of improved therapeutic outcomes, reduced adverse effects or other meaningful treatment benefits as a condition for patenting a pharmaceutical modification. Though having statutory restrictions under section 6 Bangladesh lacks explicit restrictions against secondary patents, such as variations in drug formulations, dosage forms, or new delivery systems. Bangladesh’s 2023 Act accepts patent application on minor incremental improvements which makes it easier for foreign companies to crowd the registry with secondary patents on a single product.

Section 16of the Bangladesh Competition Act, 2012 prohibits an enterprise from abusing its dominant position by restricting production of goods or technical, scientific development to the prejudice of consumers[16(2)(b)] and  engaging in practices that prevent other enterprises from accessing the market[16(2)(c)].Section 15of the 2012 Act, prohibits anti-competitive agreements that adversely affect market competition. Although it recognizes reasonable conditions imposed to protect intellectual property rights, such protection should not become a justification for anti-competitive conduct.

A pharmaceutical company holding numerous overlapping patents may use its patent portfolio to make market entry difficult for generic manufacturers, may discourage competitors from entering the market. If such conduct is attributable to an enterprise's dominant position and satisfies the statutory requirements that the overlapping patents are created just to prolong market exclusivity, it may raise concerns under the Bangladesh Competition Act, 2012.

The concerns surrounding patent highlight the need for targeted reforms in Bangladesh’s patent system.

Firstly, Bangladesh should consider strengthening Section 6, though it excludes certain new forms of knows substances, but it must expressly require pharmaceutical applicants seeking patents to demonstrate a meaningful therapeutic improvement and sufficient inventive merits before granting additional patent on minor incremental modifications India’s Section 3(d) offers a useful comparative model.

Secondly, Bangladesh should strengthen coordination between patent examination under the Bangladesh Patent Act,2023 (together with proposed reform) and competition enforcement under the Act of 2012 to ensure that intellectual property rights reward genuine innovation rather than facilitate market exclusion.

Thirdly, Bangladesh should encourage patent pools as a mechanism to address the practical barriers created by patent thickets, When several companies own different patents necessary for developing or manufacturing a particular technology or medicine, they can combine those patents into a shared licensing arrangement (Patent Pool) so that a generic manufacturer can then obtain access through one licensing arrangement instead of negotiating separately with multiple patent holders. Which reduces the risk of patent blocking.

Fourthly, Strengthening pre and post granted patent opposition. Sections 19-20provide opportunities to oppose patent applications before granting and post granted patent applications, within 6 & 24 months of publication, respectively. Bangladesh should strengthen the capacity of DPDT through specialized patent examiners with pharmaceutical expertise. An accessible online patent database should also be developed to help them to identify overlapping patent claims and challenge questionable applications with relevant scientific evidence.

Ultimately, Bangladesh’s objective should not be to eliminate legitimate patent protection, but to reward genuine innovation without allowing overlapping patents to create barriers to fair competition.

Student of Bangladesh University of Professionals