Amendment To The Thai Patent Act 1979 (As Amended 1992)

The Amendment to the Patent Act ("Amendment"), which passed Parliament in October 1998, was published in the Royal Gazette on March 21, 1999. In accordance with the provisions of the Amendment, it will become effective 180 days after publication in the Royal Gazette. Thus, the Amendment will take effect on September 27, 1999.

The Amendment makes significant changes in six areas of the Patent Act: national treatment, priority filings, patent rights, petty patents, compulsory licensing, and the Drug Patents Board.

National Treatment

Under the current Patent Act, an applicant for a patent must be a Thai national or a national of a country that allows Thai nationals to apply for patents in that country. The Act does not define the term "national".

Under the Amendment, the right to apply for patent protection will no longer be restricted to Thai nationals and nationals of countries that have reciprocal patent agreements with Thailand. The right to apply for patent protection will also be extended to nationals of countries which are parties to international patent treaties or conventions to which Thailand is also a party. Since Thailand is a member of the WTO and thus TRIPS, nationals of other WTO member countries will receive the same protection accorded to Thai nationals.

Parties who do not meet any of the above criteria may, under the Amendment, still apply for patent protection in Thailand if they are foreign applicants who are domiciled or have an ongoing, functioning industrial or commercial enterprise in either Thailand or a country which is a member of an international patent convention or treaty to which Thailand is a party.

Priority Filings

The Amendment also changes the right to claim priority based on foreign applications. Under the existing law, the right to claim priority applies only to nationals of countries which have reciprocal agreements with Thailand. Under the Amendment, however, all foreign applicants entitled to national treatment will be able to claim priority rights within 12 months of the first foreign filing date.

Patent Rights

The current law provides five exceptions to patent rights. The Amendment narrows three of these exceptions and adds two new exceptions.

The Amendment adds an exception that prevents patent rights from being asserted against the use of a patented instrument with a ship, machinery, or other equipment of a ship from a country of an international convention or treaty for patent protection to which Thailand belongs when the ship enters Thai jurisdiction, temporarily or by accident, and it is necessary that the instrument be used with the ship. The Amendment adds a similar exception for the use of a patented instrument (1) for...