Patent Act

A patent (สิทธิบัตร) is the instrument protecting an invention or a product design; a petty patent (อนุสิทธิบัตร) is the instrument protecting an invention under Chapter 3 bis. An invention is a new product or process, or an improvement of a product or process. A product design is the shape, pattern composition or colour of a product with special features usable as a model for industrial products, including handicrafts. The Director-General means the Director-General of the Department of Intellectual Property, including a delegate.

Subject to Section 9, a patentable invention must be new, involve a higher inventive step, and be capable of industrial application. Novelty is defined in Section 6, inventive step in Section 7 and industrial applicability in Section 8.

An invention is new if it is not part of the prior art (งานที่ปรากฏอยู่แล้ว). Prior art includes an invention already publicly available or in use in Thailand before the filing date; one disclosed in a published document or publication in or outside Thailand before filing, including by exhibition or other public disclosure; one already patented or petty-patented in or outside Thailand before filing; one applied for outside Thailand more than eighteen months before filing and not yet granted; and one applied for in or outside Thailand and published before the Thai filing date. A disclosure that arises from an unlawful act, or that is made by the inventor (including display at an international trade fair or an official public exhibition), within twelve months before filing is not treated as a disclosure under the published-document limb.

Five categories of invention are not protected: (1) microorganisms and their naturally occurring parts, animals, plants, and extracts of animals or plants; (2) scientific and mathematical rules and theories; (3) information systems for the operation of computers; (4) methods of diagnosing, treating or curing disease in humans or animals; and (5) inventions contrary to public order, morality, health or public welfare. Whether item (3) reaches software in a particular case is a question of interpretation; the Act's words are 'information systems for the operation of computers'.

Section 11: the right to apply for a patent on an invention an employee makes in the course of work under the employment contract, or under a contract aimed at making inventions, belongs to the employer unless the contract says otherwise; this extends to an employee who invents using the employer's methods, statistics or reports available because of the job. Section 12 is conditional: under paragraph 1, where the employer benefits from or uses the Section 11 paragraph 1 invention, the employee may be entitled to special remuneration beyond ordinary wages. Only paragraph 2, for an employee whose invention falls under Section 11 paragraph 2, gives the entitlement unconditionally. The right cannot be removed by the employment contract, and the Director-General fixes the amount on a claim.

After the application is published under Section 28, the applicant must file a request for examination within five years of the publication date, or the application is deemed abandoned. Where an opposition and appeal take place under Sections 33 and 34, the request is due within one year of the final decision, whichever period ends later. Oppositions must be filed within ninety days of publication (Section 31), and the grant fee is payable within sixty days of notice (Section 33).

An invention patent lasts twenty years from the filing date in Thailand; time spent in court proceedings under Sections 16, 74 or 77 sexies is not counted. This section covers invention patents only: the design patent term is in Section 62 and the petty-patent term in Section 65 septies.

Only the patentee may, for a product patent, make, use, sell, hold for sale, offer for sale or import the product, and for a process patent use the process and make, use, sell, hold for sale, offer for sale or import products made by it. Exceptions include acts for study, research or experiment that do not conflict with the patentee's normal exploitation or unreasonably prejudice the patentee's legitimate interests; prior good-faith users; extemporaneous preparation of medicine on a prescription; acts to register a drug for sale after the patent expires; use of patented equipment on vessels, aircraft or vehicles of countries party to an international convention or agreement on patent protection to which Thailand is also a party, when they are in the Kingdom temporarily or by accident (for a vessel, only where the equipment is needed for the vessel); and products the patentee has authorised or consented to be made or sold. Section 36 bis: the scope of protection is set by the claims, read with the description and drawings.

Three years after the grant or four years after the filing date (whichever ends later), another person may apply to the Director-General for a licence if the patentee is not exploiting the patent properly: (1) no production or use of the process in Thailand without good reason, or (2) no sale of the product, or sale at an excessive price or not meeting public demand in Thailand, without good reason. The applicant must show they tried to obtain a voluntary licence on adequate terms and failed within a reasonable time. Section 46 bis has been repealed.

A ministry, bureau or department may exercise a patent right itself or through another for public utilities, national defence, conserving or acquiring natural resources or the environment, preventing or relieving a serious shortage of food, medicine or consumer goods, or other public interest, without being bound by the conditions in Sections 46, 47 and 47 bis. It must apply to the Director-General, offering remuneration and conditions. Under Section 52, in war or an emergency the Prime Minister with Cabinet approval may order use of any patent for national defence and security, with fair remuneration and written notice to the patentee, who may appeal to the court within sixty days of notice.

A design patent lasts ten years from the filing date in Thailand; time in court proceedings is not counted. Section 56 requires the design to be new for industry, including handicrafts.

A petty patent lasts six years from the filing date in Thailand and may be renewed twice, for two years each time (so up to ten years in total). The renewal request must be filed within the ninety days before the expiry date. Under Section 65 bis a petty patent requires only novelty and industrial applicability (no inventive-step limb), and under Section 65 ter the same person cannot apply for both a patent and a petty patent for the same invention. Chapter 3 bis was added by Act (No. 3) B.E. 2542.

The Patent Board is chaired by the Permanent Secretary of Commerce, with up to twelve expert members appointed by the Cabinet, at least six of them from the private sector (Section 66). Members appointed by the Cabinet serve two-year terms (Section 67). A person aggrieved by an order of the Director-General may appeal to the Board within sixty days of notice (Section 72), and a party may appeal a Board decision to the court within sixty days of notice (Section 74).

These are separate from the criminal penalty in Section 85. Section 77 bis: where there is clear evidence that someone is infringing or about to infringe Section 36 or 63 rights, the patentee may ask the court to order them to stop or refrain. Section 77 ter: the court may order the infringer to pay damages in an amount it sees fit, considering the seriousness of the loss including lost benefits and the costs needed to enforce the right. Section 77 quater: infringing goods in the infringer's possession are forfeited, and the court may order destruction. The Act sets no multiplier or statutory minimum for damages.

Doing an act reserved to the patentee under Section 36 or 63 without permission is a criminal offence punishable by imprisonment of up to two years, a fine of up to THB 400,000, or both. The civil remedies (injunction, damages, forfeiture) are in Sections 77 bis, 77 ter and 77 quater. Infringing petty-patent rights carries up to one year, a fine of up to THB 200,000, or both (Section 86). Where a company commits the offence, directors, managers or persons responsible who ordered or committed it, or failed to act when they had a duty to, are also liable (Section 88).