Since the announcement of the amendments to Thailand’s Narcotics Act in February 2019, medical cannabis has become a legal, though controlled, substance in the country and has raised considerable interest among investors in both Thailand and abroad. However, it is worth noting that the process towards legalization also faced controversy, particularly with regard to intellectual property.
In the lead up to the legalization of medical cannabis, British GW Pharmaceuticals and Otsuka Pharmaceutical from Japan filed their patent application to Department of Intellectual Property, much to the consternation of civil society groups and researchers who claim that foreign players were seeking to dominate Thailand’s new medical cannabis sector. They argued patent protection would cause difficulties for local patients and researchers accessing their required strains. Regardless of whether this argument holds true, this article aims to examine Thailand’s approach in granting intellectual property protections to firms involved in the medical cannabis sector.
How would patents work for cannabis?
According to Section 9 (1) of the Patent Act, “natural micro-organisms and components of micro-organisms, plants, or extracts from animals or plants”[1] are excluded from the Act’s patent protection and would not be eligible as a patented invention. However, it should be noted that while cannabis plants can be considered ‘natural micro-organisms,’ strains that have been genetically modified to have certain properties or are unique to other existing strains will be considered by the Department. Under Sections 7 and 8, applicants must show that the product being patented “involves an inventive step”[2] and is “industrially applicable,”[3] meaning they should be usable for industrial production, handicrafts, agriculture, or commerce. Therefore, applicants involved in medical cannabis will be required to prove that their strains have been invented as a result of research and development for industrial or commercial use.
Applicants should also keep in mind that Section 9 (5) sanctions inventions that are “contrary to public order, good morals, health, or welfare,”[4] meaning inventions considered to be unethical to Thai authorities will not be eligible to apply for a patent. Therefore, it will be vital for applicants in the medical cannabis field to prove that their invention will enhance research or bring benefits to public health. Nonetheless, whether or not an invention in the medical cannabis field is within the scope of public order, good morals, and health, registration is still at the discretion of the authorities.
Once a patent has been granted, the holder will be given exclusive access to the invention for 20 years, blocking third parties from producing, using, selling, or importing the invention for that time period. Nonetheless, patent applications made in Thailand would only be applicable in the country; meaning if stakeholders were to use the patent holder’s strains abroad, there would be little Thai courts can do to prosecute the offender.
Are only Thais allowed to apply for a cannabis patent?
While the reason for terminating the patent application filed by the two foreign pharmaceutical companies was cited to be for the interest of Thai stakeholders, does this mean that only Thais would be granted patents for cannabis products? As of the time this article was written, the Thai government has declared that foreign companies and foreign-majority companies incorporated in Thailand are not permitted to produce, sell, import, export, or possess the substance. Nonetheless, the Thai government does not restrict foreign participation in research and development, meaning foreign players involved in creating new strains or products for Thai-controlled entities such as universities and research institutions may be permitted to do so provided the patent is filed by the Thai company.
However, it is worth taking into consideration that Thai cannabis regulations and this protective approach by the patent office may evolve over time. This is particularly so as regulators may still need to review their current stance given its implications on Thailand’s obligations as a signatory to various multilateral agreements regarding free trade and other international commercial arrangements.
Silk Legal will monitor developments in this area and will provide updates as they become available. If you are interested in Thailand’s up and coming medical cannabis industry and seek more information about it, please feel free to consult us at [email protected].
[1] Section 9, “Patent Act B.E. 2522,” 11th March 1979, available at http://web.krisdika.go.th/data/outsitedata/outsite21/file/PATENT_ACT,B.E._2522_(1979).pdf
[2] Section 7, “Patent Act B.E. 2522,” 11th March 1979, available at http://web.krisdika.go.th/data/outsitedata/outsite21/file/PATENT_ACT,B.E._2522_(1979).pdf
[3] Section 8, “Patent Act B.E. 2522,” 11th March 1979, available at http://web.krisdika.go.th/data/outsitedata/outsite21/file/PATENT_ACT,B.E._2522_(1979).pdf
[4] Section 9, “Patent Act B.E. 2522,” 11th March 1979, available at http://web.krisdika.go.th/data/outsitedata/outsite21/file/PATENT_ACT,B.E._2522_(1979).pdf
