Thailand Law Journal 2009 Spring Issue 1 Volume 12

Under the present law, all substances extracted from animals or plants, such as cultures of cells of plants or animals, seem to be also excluded from patentability. It is, however, unclear as to whether this provision refers to substances that are part of animals or plants per se, such as an animal gene, or it also includes certain products obtained from animals and plants, such as steroids, enzymes, vaccines, etc.

As to plant varieties, a sui generis regime of plant protection was established in 1999 to deal with plant inventions. As will be discussed later, while excluded from protection under the Patent Act, plant varieties are afforded protection by the “plant breeders’ rights” and the sui generis form of legal protection under the Plant Variety Protection Act.

A number of countries have passed legislation aimed at providing legal protection for TK. In Thailand, a great variety of proposals have been debated to protect ethnobotanical knowledge, traditional medicines, biological resources, traditional plant varieties, landraces, herbs, folklore, cultural property, etc. Having ratified the WTO agreement in 1994, Thailand had to pass several legislations in order to comply with the obligations it had under the international agreement. One piece of legislation adopted in compliance with Article 27.3(b) of the TRIPS Agreement was the Plant Variety Protection Act B.E. 2542 (1999) (PVP).

At the early stage, two new PVP bills were prepared by government agencies: the Ministry of Agriculture and the Ministry of Commerce. The two bills did not contain substantially different contents. The bills were modeled from UPOV 1978 and 1991. The only difference seemed to be that once adopted the system of plant variety protection will be administered by the Ministry of Agriculture or the Ministry of Commerce.

It is worth noting that the attempts to adopt the PVP were attacked by many domestic interested groups, farmers, and academicians, on the ground that the law yielded too much to the demands made by multinational seeds companies, and that the law would cause adverse effects to indigenous plant breeders and the well-being of poor farmers. However, it was argued by Thai officials of the two Ministries that the law was designed to comply with TRIPS, and not with the demands of any interested groups. Further, according to the Thai officials, the new law would generate benefits to local plant breeding activities and the Thai economy by bringing foreign direct investment and transferring modern technology into the country.

The opposition demanded for the incorporation into the law of the provisions relating to farmers’ privileges, compulsory licensing, protection of traditional plant varieties, and mechanisms of ABS and PIC. This led the Thai Government to appoint the Drafting Committee for Plant Variety Protection Bill, comprising representative of farmers, plant breeders, companies, and academics. Finally, the Committee combined the two bills into one single bill, and followed the sui generis option under TRIPS, Art. 27.3(b).

In the same year, a draft bill for the protection of traditional medicines was prepared by the Ministry of Public Health. While a bill being draft, a letter was sent by the US Embassy to Thailand’s Department of Intellectual Property. The US claimed that draft bill being prepared constituted a violation of TRIPS provisions as the regime for the protection of traditional medicines is not recognised by the international treaty. The US main concern was that the proposed regime would oblige US researchers and companies that want to make use of TK in Thailand to ask for permission from the owners of the knowledge. Thailand argued that it had complied with all TRIPS obligations. The sui generis regime for the protection and promotion of traditional medicines fully complies with the minimum standards under Art. 1(1) of TRIPS, which stipulates that member countries may provide more extensive protection than is required by the Agreement, provided that such protection does not contravene the provisions of this Agreement.

Eventually, the two bills that purported to protect TK were approved by the Thai Parliament. The Plant Varieties Protection Act, B.E. 2542 (1999), and the Act on Protection and Promotion of Thai Traditional Medicinal Knowledge, B.E. 2542 (1999) has become only two legislations that afford legal protection for TK in Thailand. Major issues under the two legislations are now discussed in detail.

3.2 The Plant Varieties Protection Act, B.E. 2542 (1999)

In 1999, the law on plant variety protection was enacted. The adoption of the law was part of Thailand’s attempts to meet TRIPS standards on plant varieties. It was believed that as a member of the WTO, Thailand is obliged to adopt a specific law to protect plant varieties, if it does not provide for plant patenting.

The 1999 Act is in compliance with Art. 27.3(b) of TRIPS. It offers a sui generis form of protection tailored for the purpose of the protection of new and traditional plant varieties. The plant varieties protection law was adopted with an aim of providing incentives based on exclusive rights for individuals or entities engaged in plant breeding. The law has two major parts: the protection of new varieties of plant and the regulation of access to plant genetic resources.

The provisions that protect new plant varieties are similar to those under the UPOV Convention 1978. The Act also protects TK-based plant varieties under the section on the protection of local plant varieties. The 1999 Act recognises the important role played by farmers and local communities as custodians of traditional crop cultivars by allowing them to register local varieties. The law establishes a registration system for a local plant variety which can be found exclusively within a particular traditional community. The registration must be made under the name of the community in which the local plant variety is found.³²

Local communities are defined as a group of people who reside and share common culture and tradition, conserve their own cultural institution, and continually pass on their culture and tradition for generations.³³ After registration, the said community becomes the right holder of the registered plant variety and enjoys exclusive rights to produce propagating material of the registered variety for commercial marketing. The scope of these exclusive rights is identical to the rights of plant breeders under the UPOV regime. The community also has the right to constrain the use of the protected variety for research or study purposes.³⁴

32 Kuanpoth, J. (2000) “Protection and Management of Plant Genetic Resources and Traditional Knowledge in Developing Countries” Thai Bar Law Journal, Vol. 56 No. 3 September, pp. 26-68 (in Thai).

33 The Plant Varieties Protection Act, B.E. 2542, Section 3.

34 Ibid., Section 47

This article is published with the kind permission of Jakkrit Kuanpoth, Senior Lecturer, Faculty of Law, University of Wollongong, Australia. This article originally appeared in the Intellectual Property and International Trade Law Forum Special Issue 2007 10th Anniversary.