กฎหมายและพระราชบัญญัติไทย

กฎหมายและพระราชบัญญัติไทย

Patent/Petty Patent/ Product Design

Patent Law (1979) and Regulations

Thailand promulgated its first patent law in 1979, with significant amendments added in 1992. In addition, due to the enacted third patent law, we have already amended the informaiton in accordance with the patent law in 1999. Apart from the protection to both inventions and product designs and pharmaceuticals, the Act (1999) also includes the petty patent as detailed below.

In general, to qualify for patent protection, an invention must be new, and have inventive step (meaning that the invention must not be obvious to a person skilled in the technical field to which the invention relates) and be useful or capable of industrial application. However some inventions are not protected under the Act:

1. Naturally existing microorganisms and their components, animals, plants or animal and plant extracts;
2. Scientific or mathematical rules or theories;
3. Computer programs;
4. Methods of diagnosis, treatment and care of human and animal diseases;
5. Inventions contrary to public order, morality, health or welfare.

Petty Patent

An invention may be granted a petty only under the following conditions:

1. The invention is new;
2. It can be applied to an industrial purpose

Any person shall not apply for both petty patent and patent in the same invention.

Product Design

A product design must be new. Moreover a design has not been widely known or used in Thailand. Neither has a design picture, the subject matter or details been displayed or disclosed in a document or printed publication before the filing of the patent application.

The following are not patentable:
1. Designs that are contrary to public order morality;
2. Designs proscribed by Royal Decree

Drug Patent

According to the agreements of TRIPs, there should be no the discrimination among the fields of technology. As a result, Chapter VII, Measures for Drug Patents, Section 55 bis, Section 55 ter, Section 55 quarter, Section 55 quinque, Section 55 sex, Section 55 sectem in Chapter II of Patent Act B.E. 2522 as amended by patent Act (No.2) 2535 is repealed.

Right of the Patentee and the Petty Patentee

The patent holder and the petty patent holder or applicant is entitled to the following rights:

• A patent generally gives the owner the right to exclude others from making, using or selling the invention. However, any act performed before the patent is granted, that would otherwise constitute an infringement of the patent, is not deemed an infringement.

• A patent holder has an exclusive right to use the words “Thai Patent” or “Thai Petty Patent”, or an abbreviation or translation.

• A patent holder may assign the patent to another holder.

• A patent holder may grant a license to another person, subject to restrictions

• The patentee shall not impose upon the licensee any condition or restriction or any royalty covenant which is an unfair restraint of competition.

• A patent holder may not require a licensee to pay a royalty or royalties after the validity of the patent has expired.

However, the right of the patentee does not apply to the following.

• The interest of Education, analysis, experimentation or research.

• Manufacture of patented products which the manufacturer or the user has engaged in the production before the date of filing of the patent application without knowledge of the registration.

• Compounding of medicines.

• Any act connected with an application for drug registration which the applicant has the objective of producing, selling, or importing the patented medical products after the expiry of the patent.

• The use of an instrument which is a patented invention related to a ship, Machinery or other ship peripheries from member country of an international convention or treaty for patent protection.

• The use of instrument which is a patented invention concerning the construction and operation or other equipment of an aircraft or any vehicle from member country of an international convention or treaty for patent protection.

• The use, sale, possession for sale, offer sale or import of patented products if the patentee permits, or gives consent to the manufacturer or sale of the product.

Foreign Patent in Thailand

Under section 19 bis, the date of a first patent application outside the Kingdom may be claimed by the application for a subsequent corresponding application filed in the Kingdom within a period of twelve months form such date.

A foreign patent that has not been granted a patent in Thailand receives no protection under the Patent Act in Thailand.

Term of Patent Protection

A patent for an invention is valid for a period of 20 years from the date of filing the application; a patent for a product design is valid for a period of 10 years from the date of filing the application. The time during which court proceedings regarding the issuance of the patent are in process shall be deducted from the term of the patent. In addition, the expired patent could not be extended.

Term of a Petty Patent

A petty patent shall be valid for the period of 6 years starting from the filing date of the application for the petty patent in the Kingdom. The petty patent may extent the term of a petty patent twice, 2 years for each extension, by filing an extension application for petty patent within 90 days prior to the expiry of Petty Patent.

The Exercise of Patent Rights

At any time after the expiration of three years form the grant of a patent or four years form the filing date of application, any person may apply to the Director-General for a license, if the patentee has not applied his lawful rights as follows:

1. there is no production of the patented product or application of the patented process in the country without any appropriate reason; or
2. there is no sale of product produced under the patent or the patented process or, if there is, it is sold at an unreasonably high price or does not meet the public demand.

Cancellation of Patents

A patent may be canceled under the following conditions:

• Although a patent has been granted, any person who has an interest in the patent or the public prosecutor may challenge its validity by petitioning the Court for cancellation

• The Director-General may request the Board to cancel a patent in the following cases:

– If it appears that two years after the issues of a license under Section 50, the licensing has been unable to prevent or alleviate the condition for which a license was issued under Section 46 or 46 bis; or
– The patentee has licensed another person to exercise the patent rights in violation of Section 41.
Before requesting the Board to cancel a patent, the Director-General shall order an inquiry and notify the patentee and licensees to submit their briefs within 60 days from the date of receipt of notification.

Penal Provision of Patent

The patentee shall have sole rights, and may initiate legal action against violators. The following is a summarized table of penalties of patent violations.

Criminal Offense Penalties
1. All officers whose duties are connected with patent application disclose the specification of the invention or permit any person to make a copy. Imprisonment not more than 2 years or a fine not exceeding 200,000 baht, or both.
2. Anyone discloses the specification of the invention knowing that a patent application for the invention has been filed or by committing any act which is likely to cause damage to the applicant. Imprisonment not more than 6 moths or a fine not exceeding 20,000 baht, or both.
3. Anyone including an applicant disclose the essential elements or specification of the invention unless authorized by law. Imprisonment not exceeding 1 year or a fine not exceeding 50,000 baht, or both
4. Anyone uses the words Thai Patenth or Patent Pendingh or the abbreviation or foreign letters having the same meaning. Imprisonment not exceeding 1 year, fine of not more than 200,000 baht
5. Anyone use the invention or the patented design for manufactured products to sell, keep for sale, offer for sale or import without the permission of the patentee. Imprisonment not exceeding 2 years, fine of not more than 400,000 baht
6. Presenting false evidence to the competent officer. Imprisonment not exceeding 6 months, fine of not more than 5,000 bahtHowever any act in violation of Section 36 committed before the grant of a patent shall not be deemed an infringement of the patenteefs right unless the act is in respect of an invention under a pending patent application which has been published under Section 28

Trademark

The new Trademark Act of Thailand were amended and came into force upon June 2000 .
The following topics were amended. :

1. Definition of words (Sec.4)
2. Eligibility for Trademark to be registered (Sec.7)
3. The Trademark application comformed to the International Convention or Treaty (Sec.11)
4. Cancellation of Advertisement Fee (Sec.29 ,Sec31, Sec33)
5. Priority Right (Sec.28)
6. Claiming Priority Right since publicized in Exhbition (Sec.28)
7. Register’s Opposing Authority (Sec.36)
8. Considered Registered Date (Sec.42)
9. Cancellation of Trademark (Sec.61)
10. The Result from the Appeal Decision of the Trademarks Board (Sec.95 ,Sec.96 ,Sec.99, Sec.101)
11. Specification of Law Enforcement Mechanics (Sec.106)
12. Penalties (Sec.112 ,Sec.114)
13. Provisional Measures (Sec.27)

A trademark which could be registered must be distinctive , not be prohibited under this Act ,and not be the same as or similar to a trademark registered by another person . A distinctive trademark is one which enables the public or users to distinguish the goods with which the trademark is used from other goods.

A trademark having one or more of the following essential particulars shall be deemed distinctive :

(1) a personal name ,a surname not being such according to its ordinary signification ,a name of a juristic person as provided by this Law or a tradename represented in a special mannar which has no direct reference to the character or quality of goods ;

(2) a word or words having no direct reference to the character or quality of the goods and not being a geographical name designated by the Minister by notification;

(3) Combination of colors represented in a special manner ,or stylized letters ,numerals or invented words;

(4) the signature of the applicant for registration or some predecessor in his business or the signature of another person with his or her permission;

(5) a representation of the applicant or of another person with his or her permission or of a dead person with the permission of his or her ascendants ,descendants and spouse ,if ,any ;

(6) an invented device;
The trademarks of the following description shall not be registable by section 8

(1) state arms or crests, official emblems, the royal standard, official and national flags of Thailand;

(2) national emblems and flags of foreign states, emblems and flags of international organizations of which Thailand is a member of which are widely known, unless permission is given by the competent officer of the foreign state or international organization;

(3) royal names and royal monograms;

(4) representations of the King, Queen or royal descendants;

(5) royal and official seals and seals of office;

(6) emblems and insignia of the royal orders and decorations;

(7) emblems of the Red Cross or appellations “Red Cross” or “Geneva Cross”;

(8) a mark identical with or similar to a medal, diploma or certificate or any other mark awarded at a trade exhibition or competition held by the Thai government or a Thai government department or enterprise, a foreign government or international organization unless such medal, diploma, certificate or mark has been actually awarded to the applicant for goods and is used in combination with the trademark;

(9) trademarks similar to those under 1,2,3,5,6, or 7;

(10) any mark which is contrary to public order, morality or public policy;

(11) a mark which is the same as a generally famous mark, registered or not, or so similar thereto that the public might be confused as to the proprietor or origin of the goods;

(12 )Other trademarks designated by the Minister by notification.

Term of Trademark Protection

The registration of a trademark is valid for 10 years from the date of application may be renewed within 90 days before the expiration of the trademark registration.

Penal Provisions for Trademark Infringement

The owner of a registered trademark has the exclusive right to use the trademark, and may initiate legal action against violators. The following is a summarized table of penalties of trademark violations.

Criminal Offense Penalties
1. Presenting fals evidence whileregistering a trademark Imprisonment not exceeding 6 months or a fine not exceeding 10,000 baht, or both.
2. Anyone who counterfeit person’s trademark, registered in the Kingdom, or who sells, possesses for sale, or brings into the Kingdom objects Imprisonment not exceeding 4 years or a fine not exceeding 400,000 baht, or both.
3. Anyone who imitates another person’s registered trademark in order to mislead the public into believing the imitation mark is that of the registered owner, or who sells, possesses for sale, or brings into the Kingdom objects with an imitated trademark Imprisonment not exceeding two years or a fine not exceeding 200,000 baht, or both
4. The proprietor of registered certification mark use the mark on this won goods or services and license other persons to act as certifier. Fine of not more than 20000 baht