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Myanmar, also known as Burma, a least developed country in mainland South-East Asia, is still in its embryonic phase of Intellectual Property Laws. The country is not presently a signatory to the Paris Convention for the Protection of Industrial Property or any other treaty protecting patents. The Burma Patents and Designs (Emergency Provisions) Act 1946 came into force in 1993 in the country, but has been repealed, and therefore currently Myanmar does not have any standard through which Patents can be applied and enforced. This brings about a scenario where goods that are patented, and for which companies or individuals hold relevant patent rights outside Myanmar, can be produced and used for commercial purposes and traded in Myanmar without the permission of the actual rights owner. There is no regulation or any law for protection of inventions and related IP. As a result, it is currently not possible to apply for patents in Myanmar.
Current setting for Patent Protection: Though, there is a gap between the redundant Patent Law and enforcement of new law, Patent protection has found its way through section 18(f) of the Registration Act under which Declaration of Ownership with the Myanmar Registry Office of Deeds and Assurances can be filed by the Patent owners. This declaration is a solemn statement of facts made by the Patent owner. After the declaration is registered, it is advisable to publish a Cautionary Notice in a daily English Language newspaper informing the public about the ownership of the patent which warns the potential infringers of legal action by patent owners. There is no substantive examination of the patent filed by way of such Declaration. The Declaration is valid for three months period with possibility of renewal. Nonetheless, this Declaration doesn’t grant any patent rights and currently, in absence of a proper legislation, there is actually no option to enforce patents in Myanmar.The Specific Relief Act (Section 54(b) and (c), and Illustration (u)) allows for patent infringement lawsuit, but it is ambiguous as to how such lawsuit may be conducted and decided upon in absence of patent law and the required legal standard. Thus, this law provides limited patent protection. Moreover, priority claim registration is not available under the Registration Act.
Furthermore, Technology Transfer Agreements are enforceable if they are registered with the Myanmar Scientific and Technology Research Department but it doesn’t cover patent licensing. As there is no specific law for protection of patents in Myanmar, most entrepreneurs as an alternate way of protecting their inventions, spend extensive amounts in protecting their trademarks through the available means. By doing so, they protect the brand reputation and goodwill of their products as a minimum that they can achieve.
TRIPS and Myanmar: Myanmar has acceded to Trade Related Aspects of Intellectual Property Rights (TRIPS), and therefore it is required that the country complies and implements the laws in consonance with the Agreement by no later than 1st July 2021. Consequently, Myanmar is drafting IP laws particularly Patent Laws to ensure its legislation is in line with the TRIPS. Thus, the status of IP Law seems to be improving as the country has drafted a new legislation for regulation of Patent which is supposed to be in compliance with TRIPS Agreement.
The Draft Law for Patents: The Draft law has been framed and published in 2015 and it is endowed with the procedural and substantive provisions found in patent laws of most Paris Convention countries. The Attorney General’s Office and Ministry of Science and Technology were instrumental in drafting the said law that is expected to be promulgated by the end of 2017 or in early 2018. According to the Draft Patent Law, to be patentable, the invention must be novel involving an inventive step and should also have an industrial applicability. These requirements are the basic three requirements as per the international standards of patent protection globally.
According to the draft bill, Patent applications can be filed with the Myanmar Intellectual Property Office (IPO) and the registration system has been kept similar to the other ASEAN countries. IPO shall be responsible for all IP registrations in the country. After the receipt of the application for the patent filed, preliminary examination will be conducted by the IPO following publication of the patent application only after making sure that it does not defy the integrity, national security, and public safety. If it is found that the patent application is contrary to national security and public safety, the rights will get transferred to the Myanmar Government. After the publication, a three months period will be provided for any opposition which can be raised from the date of publishing of the patent application, it will be subsequently followed by substantive examination and finally grant or reject the application. The life of protection of Patents will be twenty years, subject to annual fees.
The draft bill has also provided for the grant of compulsory licenses wherein, the Myanmar Government will have the right to issue compulsory licenses for specific vital pharmaceuticals and the owner of the rights can’t deny such grant of license subject to royalties. The interest of the patent owners has been protected by the law and specific remedies have been provided in case of infringement of the patents which include civil litigation and criminal prosecution. Also, the patent owners can apply to appropriate courts for grant of preliminary injunctions.
At present, it is extremely difficult to enforce patent protection in Myanmar in absence of proper Patent law and legal standards. Innovations and intellectual inventions can’t be protected in Myanmar, so it is highly worthwhile to think before bringing such innovations into place in Myanmar. However, it is a sigh of relief for the inventors and investors, that the country has acceded to TRIPS, the law for patent protection has been drafted and is set to arrive anytime soon.
Author: Ms. Pratistha Sinha, Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at firstname.lastname@example.org.