Section 44 of the Interim Constitution Utilized to Clear Backlog of Unexamined Patent Applications in Thailand

On 28 February 2017, the Prime Minister's Office announced that the Cabinet and National Council for Peace and Order (the NCPO) approved a request from the Department of Intellectual Property (the “DIP") to solve the problem of a backlog of unexamined Thai patent applications by issuing an appropriate order under Section 44 of the Interim Constitution of 2014 (the Interim Constitution).

Section 44 of the Interim Constitution was promulgated by the NCPO on 22 July 2014. The main concept of section 44 is that in cases where deemed necessary by the Head of the NCPO, with approval of the NCPO, the Head may issue any orders to suppress, restrain, or perform whatever act, whether such act would have a legislative, executive, or judicial effect. In this regard, all such orders, acts and the following of such orders are deemed lawful and constitutional.

The DIP requested that it be authorized to grant patents for those applications which meet the following criteria:

  • Pending patent applications which were filed with the DIP five (5) or more years ago and for which a request for substantive examination has been already submitted;
  • There is a corresponding granted patent in a foreign country; and
  • The claims of the applications correspond or are made to correspond to the claims of such granted patents.

Currently there are about 20,000 unexamined patent applications in Thailand. Under this scheme, the DIP aims to grant about 12,000 patents within three (3) months. However, anyone may later challenge a patent granted under this scheme on the ground that it does not meet the requirements for patents by requesting the Patent Committee to reexamine such patent. If the Committee finds that such a patent is unpatentable, the patent will be revoked. The DIP will announce its regulations regarding this scheme soon.

The Intellectual Property Association of Thailand (the "IPAT") has issued a statement in support of the NCPO and DIP utilizing section 44 as they believe that this will increase the confidence of investors. However, the president of the Fair Trade Area Watch (the "FTA Watch") and some pharmaceutical-related NGOs have argued that this scheme should not be applied to pharmaceutical-related patent applications as these patents should be examined carefully so as to balance the interests of patentees and the public as the owners of drugs protected by patent have a monopoly over the price. It has been reported that there are about 3,900 pharmaceutical-related patent applications among those 20,000 unexamined patent applications. As such, the NCPO will issue special regulations to control the prices of patented drugs.

However, this is a new announcement from the Prime Minister's Office and it remains to be seen how it will be implemented with so many objectors. We will monitor this closely and keep you informed of any updates on this as they arise.

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