RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/125/Add.22
10 August 2001
(01-3970)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF THE PROVISIONS OF ARTICLE 27.3(b)
Information from Members
Addendum
THAILAND1
The present document represents the information requested by the Council for Trade-Related
Aspects of Intellectual Property Rights which the Secretariat has received from Thailand, by means of
a communication from its Permanent Mission, dated 8 August 2001.
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A. PATENT PROTECTION OF PLANT AND ANIMAL INVENTIONS
1. To what extent are inventions concerning plan ts or animals, whether products or processes,
patentable under your country’s law, if they meet the conditions for patentability stipulated in
Article 27.1 of the TRIPS Agreement?
According to the Patent Act, B.E.2522 as amended by the Patent Act (No. 2), B.E.2535 and
the Patent Act (No. 3), B.E.2542 (hereinafter "the Patent Act"), a patent may be granted for any
invention, whether product or process, which is new, involves an inventive step and is capable of
industrial application (Section 5).
Under Section 9 of the Patent Act, plants and animals per se , however, are not patentable,
regardless of the fact that such inventions meet the above-mentioned conditions for patentability.
Nevertheless, there is no provision in the Patent Act precluding methods or processes for the
production of plants and animals from patentability.  In other words, although plants and animals arenot patentable, methods or processes for the produc tion of plants and animals may be patented under
the Patent Act.
2. Where any such inventions are not patentable, even if they meet these conditions:
(i) To what extent is this due to per se exclusions from patentability?
According to Section 9, not only plants and animals are excluded from patent protection,
extracts therefrom (both from plants or animals) are also not patentable.
In addition, Section 9 also excludes "methods" of diagnosis, treatment or cure of human and
animal diseases from patentability.
                                                     
1 An illustrative list of questions prepared by the S ecretariat in response to a request from the Council
is available in document IP/C/W/122.IP/C/W/125/Add.22
Page 2
(ii) To what extent is this based on other grounds (for example because conditions for
patentability other than those stipulated in Article 27.1 are not met or in order to
protect ordre public or morality (see Article 27.2 of the Agreement))?
Any inventions contrary to public order, morality, health or welfare are not protected under
the Patent Act (Section 9(5)).
3. Please describe any specific provisions, guidelines, final judicial decisions and administrative
rulings of general application concerning the application of the conditions for patentability stipulated
in Article 27.1 to subject-matter addressed by Article 27.3(b).
Not available because plants and animals are not patentable subject-matter under the Patent
Act according to Section 9 (see the reply to question A.1).
4. Where plant varieties are not as such patentable subject-matter under your country’s law,
please indicate the extent to which the scope of protection under patents for inventions concerning
plants can nevertheless embrace plant varieties or a botanical taxon whose plants express a traitcovered by the claims of a patent.
Plant varieties per se  are not patentable subject-matter under the Patent Act, but any process
for obtaining new plant varieties may be patentable, pr ovided that it is new, involves an inventive step
and is capable of industrial application.  (Plant varieties are, however, protected under the PlantVarieties Protection Act, B.E.2542 (1999), see the reply to question B.4)
5. Please provide any definitions used under your country’s law with regard to subject-matter
specifically excluded from patentability or specifically patentable (e.g. micro-organisms,
microbiological processes, non-biological processes, plant varieties).
While Section 9 of the Patent Act explicitly states that plants, animals or extracts from
animals or plants as well as naturally occurring micro-organisms and their components are excluded
from patentability, there exists no definition of those terms in the Act itself.
Only the term "plant" is defined by Section 3 of the Plant Varieties Protection Act, B.E.2542
(1999) as follows:  "plant means a living organism in the kingdoms of plants and shall includemushroom and seaweed but exclude other micro-organisms".
6. To what extent is subject-matter that is iden tical to what occurs in nature patentable under
your country’s law?
The definition of the term "invention" stipulated in Section 3 of the Patent Act, which reads:
"invention means any innovation or invention wh ich creates a new product or process, or any
improvement of a known product or process", may, to some extent, reflect the underlying principle of
the patent system that patents shall not be granted for things occurring in nature.  Along that line is the
provision of Section 9(1), which excludes micro-organisms and their components already existing innature as well as extracts of pants and animals from patentability.
With regard to the subject-matter identical to what occurs in nature, according to the Patent
Act, neither modified nor naturally existing plants and animals can be patented.  However, modified
micro-organisms and modification of their components are patentable (Section 9).IP/C/W/125/Add.22
Page 3
7. Explain the requirements under your country’s law for ensuring adequate disclosure of the
patentable inventions referred to above.
There is no special requirement for ensuring ad equate disclosure in the case of inventions
referred to under question A.6.  However, the general provisions for ensuring adequate disclosure asset forth in Section 17 of the Patent Act shall also apply to this type of invention as follows:
- the patent application shall contain a detailed description of the invention;- such a description shall be, as such, full, concise and clear and exact terms as to
enable any person ordinarily skilled in the art to which it pertains, or with which it is
most nearly connected, to make and use the invention;  and
- the description shall set forth the best mode contemplated by the inventor (the
applicant) to carry out his invention.
8. What rights are conferred upon owners of the patents referred to above? Are product and
process patents subject to the same rules as other patents?  Do they benefit from the same protection
as stipulated in Article 28 of the TRIPS Agreement?
The above-referenced product and process patents are subject to the same rules as other
patents, and the owners of which benefit from the same protection as stipulated in Article 28 of theTRIPS Agreement as follows:
- where the subject-matter of the patent is a "product", the patentee shall enjoy the right
to produce, use, sell, have in the possession for sale, offer for sale or import the
patented products;  and
- where the subject-matter of the patent is a "process", the patentee shall have the right
to use the patented process, produce, use, sell, have in the possession for sale, offer
for sale or import the product produced by the patented process.
In addition, the owners of the patents may authorize any other person, by granting a licence,
to exercise the above-mentioned rights conferred to him, and may also assign his patent to anypersons (Section 38).
9. Are there any specific exceptions to these rights (affecting the scope or duration of the patents
referred to above)? To what extent are exceptions, available in respect of plant variety rights (e.g.
those referred to under question B.4(i) below), available in respect of rights conferred upon patentowners?
There is no specific exception to those rights of the patentee referred to above.  However,
general exceptions as set forth in Section 36, paragraph 2 of the Patent Act shall still apply, e.g., an
act for the purpose of study, research, experimentation or analysis shall be deemed an exception to therights of the patentee if it does not unreasonably c onflict with a normal exploitation of the patent and
do not unreasonably prejudice the legitimate interests of the patent owner.
10. Are there any specific provisions under your country’s law for compulsory licensing in
respect of the patents referred to above?
No.  All cases of compulsory licensing are subjected to the same rules.IP/C/W/125/Add.22
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B. PROTECTION OF PLANT VARIETIES
1. Does your country’s law provide for the protection of plant varieties by plant breeder’s
rights, plant patents or any other sui generis system for the protection of plant varieties?
Yes.
2. (a) If your country is a party to the International Convention for the Protection of New
Varieties of Plants (UPOV) , please indicate which Act or Acts of the UPOV
Convention your country has signed;  which it has ratified;  to which it has acceded;
and to the standards of which its law conforms but to which it has not (yet) adhered.
(b) If your country is not a party to the UPOV Convention, does the protection offered to
plant varieties under your country’s law conform to the standards of any of the Acts
of the UPOV Convention and, if so, which?
Thailand is not a party to the UPOV Convention.  However, the Plant Varieties Protection Act
has some subject-matters which conform to the 1978 Act of the UPOV Convention.  The Act protectsthe new protected varieties based on novelty, distinctness, uniformity and stability.
3. Please indicate whether concurrent protection under your country’s plant variety protection
law and its patent law is available (see also question A.4 above).
The Plant Varieties Protection Act is offered to both asexually and sexually produced plant
varieties, the Patent Act provides patent protection to the only procedure of produced plant varieties.
4. Please provide the following details of your country’s sui generis system for the protection of
plant varieties:
(a) the relevant laws and regulations and, if they have been notified to the Council for
TRIPS, a reference to the relevant WTO documents;
The protection of new plant varieties in Thailand is under the Plant Varieties Protection Act,
B.E.2542 (1999) (IP/N/1/THA/P/1).
(b) the definition of "plant variety";
According to Section 3 of the Act, plant variety means a plant grouping of similar or identical
genetic and botanical characteristics, with particular features which are uniform, stable and distinct
from other grouping in the same species of plant and shall include trees, the propagation of which isconducive to the plant grouping of the aforesaid features.
(c) the conditions required for protection;According to Sections 11 and 12 of the Act, the conditions required for the protection of new
plant varieties are novelty, distinctness, uniformity, stability, not exploited in or outside the Kingdom
for more than one year and distinct from other plant varieties existing on the date of filing the
application.IP/C/W/125/Add.22
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(d) the extent to which subject-matter that is already known to the public or identical to
what occurs in nature is protectable under your country’s sui generis system for the
protection of plant varieties;
According to Sections 52 and 53 of the Act, subject-matters are:  a person who collects,
procures or gathers general domestic plant varieties, wild plant varieties or any part of such plant
varieties for the purposes of variety development, education, experiment or research for commercial
or non-commercial purposes shall make a profit-sh aring agreement and comply with the Regulation
prescribed by the Commission.
(e) the extent to which protection can be based on characteristics of germplasm, as
opposed to characteristics of plant varieties derived from such germplasm;
The Plant Varieties Protection Act, B.E.2542 has granted protection only for the new plant
varieties derived from any germplasm.
(f) who is entitled to the rights;The right holder of a new plant variety.(g) the procedure for the acquisition of rights, including the authority in charge of
administering the rights;
The application for registration of a new plant variety should be made in accordance with the
subject-matters in Section 19 of the Act.  A breeder who applies for registration should declare the
details and procedures prescribed in the Ministerial Regulation.  The application would be examined
by the competent official and considered by the Di rector-General of the Department of Agriculture,
Ministry of Agriculture and Cooperatives which is th e authority in charge of administering the rights.
(h) the rights conferred;The Plant Varieties Protection Act, B.E.2542 provides the right holder of a new plant variety
to have the exclusive right to produce, sell or distribute in any manner, import, export or possess for
any purpose, the propagating material of the new plant variety.
(i) exceptions to the rights conferred, such as:
- acts performed for research or experimental purposes;
Yes, there are exceptions under the Act to the rights for research or experimental purposes in
Section 33, paragraph 2.
- acts performed to develop new varieties of plants;
Yes, there are exceptions under the Act to the rights for developing new varieties of plants in
Section 33, paragraph 2.
- acts performed to commercialize such newly developed varieties;
Yes, there are exceptions under the Act to the right to commercialize such newly developed
varieties in Section 33, paragraphs 1 and 2.IP/C/W/125/Add.22
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- any “farmer’s privilege” (e.g. acts performed by a farmer on his own land in 
respect of seed saved from the previous harvest);
Yes, there are exceptions under the Act to the rights for "farmer's privilege" in Section 33,
paragraph 4.
- acts done privately and for non-commercial purposes;
Yes, there are exceptions under the Act to the rights for doing privately and non-commercial
purposes in Section 33, paragraph 5.
- compulsory licensing.
Yes, there is compulsory licensing under the Act in Sections 36 and 37.  The Minister of the
Ministry of Agriculture and Cooperatives with the approval of the Commission, has the power to
issue a Notification prohibiting the production, sale, distribution in any manner, importation or
exportation of new plant varieties for the period of time.  The Director-General of the Department ofAgriculture, with the approval of the Commission, has the power to authorize the use of the right
holder of a new plant variety in case of no sale or in sufficient of the propagating material of that new
plant variety.
(j) the duration of protection;According to Section 31 of the Act, the variety protection right shall expire at:- The end of the 12
th calendar year following the date of the registration of its
establishment for biennials.
- The end of the 17th calendar year following the date of the registration of its
establishment for trees.
- The end of the 27th calendar year following the date of the registration of its
establishment for tree-based utilizations.
(k) transfer of rights;
According to Section 32 of the Act, the right holder of a new plant variety may authorize any
person to use his rights in his new plant variety or may assign such rights to other persons.
(l) the enforcement of the rights.
According to Sections 61 and 62 of the Act, the infringement of the right of the right holder of
a new plant variety and a local domestic plant variety would be ordered by the Court to pay the right
holder such an amount of compensation as the Court deems appropriate.  All infringing plant varietiesare confiscated by the Court and proceeded by the De partment of Agriculture with the approval of the
Commission.
According to Sections 63-68 of the Act, an y person who commits an offence shall be
punished by imprisonment for a term of not more than two years or by a fine not exceeding fourhundred thousand Baht (B 400,000) or both.
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