Part III Rights Conferred By The Patent

Section 35⁽¹⁾ An invention patent shall have a term of twenty years from the date of filing of the application in the country. The term of a patent shall not include the period during which court proceedings are taken under Section 16, 74 or 77 sexies.

Section 35 bis⁽²⁾ Any act in violation of Section 36 committed before the grant of a patent shall not be deemed to be an infringement of the patentee's rights unless the act is in respect of the invention under the pending application already published under Section 28, the person so acting knowing of the filing of the patent application or having been informed in writing that a patent application has been filed for the invention, in which case the applicant shall be entitled to damages from the infringer. A compliant for such damages shall be filed with the court after the patent is granted.

Section 36⁽³⁾ No other person except the patentee shall have following rights:

     (1) where the subject matter of a patent is a product, the right to produce, use, sell, have in the possession for sale, after for sale or import the patented product;

     (2) where the subject matter of a patent is a process, the right to use the patented process, to produce, use, sell, have in the possession for sale, offer for sale or import the product produced by the patented process.

The preceding paragraph shall not apply to:

     (1) any act for the purpose of study, research, experimentation or analysis, provided that it does not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner;

     (2) the production of the patented product or use of the patented process, provided that the producer or user, in good faith and without knowing or having no reasonable cause to know about the patent application, has engaged in the production or has acquired the equipment therefore prior to the date of filing of the patent application in Thailand, Section 19 bis not applicable hereto;

     (3) the compounding of a drug specifically to fill a doctor's prescription by a professional pharmacist or medical practitioner, including any act done to such pharmaceutical product;

     (4) any act concerning an application for drug registration, the applicant intending to produce, distribute or import the patented pharmaceutical product after the expiration of the patent term;

     (5) the use of a device forming the subject of a patent in the body of a vessel or other accessories of a vessel of a country party to an international convention or agreement on patent protection to which Thailand is also party, when such a vessel temporarily or accidentally enters the waters of Thailand, provided that such a device is used there exclusively for the needs of the vessel;

     (6) the use of a device forming the subject of a patent in the construction or other accessories of an aircraft or a land vehicle of a country party to an international convention or agreement on patent protection to which Thailand is also party, when such aircraft or land vehicle temporarily or accidentally enters Thailand;

     (7) the use, sale, having in possession for sale, offering for sale or importation of a patented product when it has been produced or sold with the authorization or consent of the patentee.

Section 36 bis⁽¹⁾ The scope of the rights of the patentee under Section 36 in respect of a patented invention shall be determined by the claims. In determining the scope of the claimed invention, the characteristics of the invention as indicated in the description and the drawings shall be taken into account.

The scope of protection for a patented invention shall extend to the characteristics of the invention which, although not specifically stated in the claims, in the view of a person of ordinary skill in the pertinent art, have substantially the same properties, functions and effects as those stated in the claims.

Section 37⁽¹⁾ The patentee shall have the right to use the word "Thai Patent," its abbreviation or any foreign word of the same meaning on the product, the container or package of the product, or in the advertisement of the product.

The indication under the first paragraph shall be accompanied by the patent number.

Section 38 The patentee may authorize any other person, by granting a license, to exercise the rights conferred to him under Section 36and 37, and may assign his patent to any other person.

Section 39 In granting a license under Section 38,

     (1) the patentee shall not impose upon the licensee any condition, restriction or any royalty term which is unjustifiably anti-competitive.
Conditions, restrictions or terms which is unjustifiably anti-competitive shall be prescribed in the Ministerial Regulations;

     (2) the patentee shall not require the licensee to pay royalties for the use of the patented invention after the patent has expired in accordance with Section 35.
Conditions, restrictions or terms concerning royalties which are contrary to the provisions of this Section are null and void.

Section 40 Subject to Section 42, in the absence of any provision to the contrary between the parties, a joint owner of a patent may, separately, exercise the rights conferred under Section 36 and 37 without the consent of the other joint owner, but he may grant a license or assign the patent only when it is consented to all joint owners.

Section 41⁽¹⁾ The license contract and the assignment of a patent under Section 38 shall be in writing and registered in compliance with the requirements and procedures prescribed by the Ministerial Regulations.

If it appears to the Director-General that a clause in a license contract is contrary to the provisions of Section 39, the Director-General shall submit such contract to the Board. If it is held by the Board that the contract is contrary to the provisions of Section 39, the Director-General shall refuse the registration of such contract, unless it may be assumed under the circumstances of the case that the parties intended the valid part of the contract to be severable from the invalid part. In the latter circumstances, the Director-General may order the registration of the valid part of the contract.

Section 42 The transfer of a patent by succession shall be in compliance with the rules and procedures prescribed by the Ministerial Regulations.

Part IV Annual Fees

Section 43⁽²⁾ A patentee shall pay annual fees as prescribed by the Ministerial Regulations beginning the fifth year of the term of the patent. The payment of the fees shall be made within sixty days following the beginning of the fifth year of the term of the patent and of very year thereafter.

If a patent is granted after the beginning of the fifth year of the term of the patent, the first annual fee shall be paid within sixty days following the grant of the patent.

If the patentee does not pay the annual fees within the period as prescribed in the first or second paragraph, the patentee shall be liable to pay a surcharge of thirty percent of the unpaid annual fee by paying the annual fee together with the surcharge within one hundred and twenty days following the expiration of the payment period prescribed in the first or second paragraph.

If the patentee fails to pay the annual fee and the surcharge within the period prescribed in the third paragraph, the Director-General shall prepare a report to the Board for canceling the patent.

If the patentee files within sixty days from the date of receipt of the cancellation order, a request to the Board that the failure to pay the annual fee within the period prescribed in the third paragraph and the surcharge was due to a cause of necessity, the Board may extend the payment period or cancel the patent as they deem appropriate.

Section 44⁽¹⁾ The patentee may request to pay all annual fees in advance by paying all of the annual fees in one payment instead of paying annually. In cases where all of the annual fees have been paid in advance by the patentee, and subsequently the list of the annual fees is revised or the patent is surrendered or cancelled, the patentee shall not be obliged to pay for any increase in the annual fees or shall not be entitled to refund the fees already paid by him.

Part 4