The National Council for Peace and Order (NCPO) and the Cabinet have agreed upon adopting Section 44 of the Interim Constitution of 2014 to issue an order to resolve the problem of Thai Patent applications backlog, as requested by the Department of Intellectual Property (DIP). This order was deemed necessary to boost the process of handling the delayed applications which are currently 10-20 years due. Indeed, more than 12,000 pending applications are still under the registration process.
Indeed, Section 44 of the Interim Constitution states that in the case the Head of NCPO deems necessary to initiate reforms for the improvement of the unity and harmony among people in the country or for the prevention, restraint or suppression of any act likely to undermine public order or national security, the latter shall have the power to order or perform any act whether legislative, executive or judicial to be deemed lawful and constitutional under this Constitution.
The DIP has predicted that by applying the order issued under Section 44, within a 3-month period, the number of patent applications in the backlog shall be reduced. According to the scheme proposed by the DIP, applicants can submit a request for a modified substantive examination to automatically obtain protection. However, such request can only be submitted for the applications which have been pending for the past five years or more, and have already been registered in other foreign countries. Indeed, these applications should not require further substantive examination as they have already been granted protection by other foreign countries. The decision to grant protection issued under this modified substantive examination could however be challenged within one year from the grant date by any third party through a reexamination process.
The NCPO and the Cabinet have however shared their concerns over this order that might have an impact on patented pharmaceutical products. Indeed, the application of such scheme to pharmaceutical patent applications would result in the automatic grant of protection to incremental inventions which would likely increase drugs price. Nevertheless, upon this concern, the Ministry of Public health has announced that they will carefully examine the drugs that will be patented to request for a reexamination if needed. Further updates to the order to protect the rights of domestic pharmaceutical manufacturers are also currently being considered.