Intellectual property law
patent law in Thailand

PATENT ACT B.E. 2522 (1979)

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Section 1

This Act shall be called the "Patent Act B.E. 2522 (1979)"

This was amended by the Patent Act (No.2) B.E. 2535 and the Patent Act (No.3) B.E. 2542.

Section 2

This Act shall come into force after the expiration of one hundred and eighty days following the date of its publication in the Government Gazette.

CHAPTER I

PRELIMINARY

Section 3

In this Act:

  • "Patent" means a document issued to grant protection for an invention or a design under the provisions in Chapters 2 and 3 of this Act;
  • "Petty patent" means a document issued to grant protection for an invention under the provisions in Chapter 3 bis of this Act;
  • "Invention" means any innovation or invention which creates a new product or process, or any improvement of a known product or process;
  • "Process" means any method, art or process of producing, maintaining or improving the quality of a product, including the application of such process;
  • "Design" means any form or composition of lines or colors which gives a special appearance to a product and can serve as a pattern for a product of industry or handicraft;
  • "Patent owner" includes the transferee of a patent;
  • "Petty patent owner" includes the transferee of a petty patent;
  • "Board" means the "Board of Patents";
  • "Competent Officer" means a person appointed by the Minister to act under this Act;
  • "Director-General" means the Director-General of the Department of Intellectual Property, including any person who is designated by him;
  • "Minister" means the Minister having charge and control of the execution of this Act.

Section 4

The Minister of Commerce shall have the charge and control of the execution of the Act and shall have power to appoint competent officers and issue Ministerial Regulations prescribing fees not exceeding those fixed in the list attached to this Act, exempting any part or whole fee and prescribing other procedures for the execution of this Act.

The Ministerial Regulations shall become effective upon their publication in the Government Gazette.

CHAPTER II

PATENT FOR INVENTIONS

Part I

Applications For Patents

Section 5

Subject to Section 9, a patent may be granted only for an invention in respect of which the following conditions are satisfied:

  • the invention is new; 
  • it involves an inventive step; and 
  • it is capable of industrial application.

Section 6

An invention is new if it does not form part of the state of the art.

The state of art also includes any of the following inventions:

  • an invention which was widely known or used by others in the country before the date of application for the patent; 
  • an invention the subject matter of which was described in a document or printed publication, displayed or otherwise disclosed to the public, in this or a foreign country before the date of the application for a patent; 
  • an invention for which a patent or petty patent was granted in this or a foreign country before the date of application; 
  • an invention for which a patent or petty patent was applied in a foreign country more than eighteen months before the date of the application and a patent or petty patent has not been granted for such invention; 
  • an invention for which a patent or petty patent was applied for in this or a foreign country and the application was published before the date of application.

A disclosure which was due to, or made in consequence of, the subject matter having been obtained unlawfully, or a disclosure which was made by the inventor, or made in consequence of, the inventor displaying the invention at an international exhibition or an official exhibition if such disclosure was done within twelve months before the filing of an application for the patent, shall not be deemed to be a disclosure under subsection (2) above.

Section 7

An invention shall be taken to involve an inventive step if it is not obvious to a person ordinary skilled in the art.

Section 8

An invention shall be taken to be capable of industrial application if it can be made or used in any kind of industry, including handicrafts, agriculture and commerce.

Section 9

The following inventions are not protected under this Act:

  • naturally occurring microorganisms and their components, animals, plants or extracts from animals or plants; 
  • scientific or mathematical rules or theories; 
  • computer programs; 
  • methods of diagnosis, treatment or cure of human and animal diseases;
  • inventions contrary to public order, morality, health or welfare.

Section 10

The inventor shall have the right to apply for a patent and to be named as such in the patent.

The right to apply for a patent may be assigned or transferred by succession.

The assignment of the right to apply for a patent must be in writing and shall require the signatures of the assignor and assignee.

Section 11

The right to apply for a patent for an invention made in the execution of an employment contract or a contract for performing a certain work shall belong to the employer or the person having commissioned the work, unless otherwise provided in the contract.

The provision of the first paragraph shall apply in the circumstance where an employment contract does not require in employee to exercise any inventive activity, but the employee has made the invention using any means, data or report that his employment has put at his disposal.

Section 12

In order to promote inventive activity and to give o fair share to the employee in the circumstances provided for in the first paragraph of Section 11, the employee-inventor shall have a right to remuneration other than his regular salary if the employer benefits from the invention.

In the circumstances provided for in paragraph 2 of Section 11, the employee-inventor shall have a right to remuneration.

The right to any remuneration is not prevented by any contractual provision.

A request for remuneration under paragraph one and paragraph two of this Section shall be submitted to the Director-General in accordance with the rules and procedures prescribed in the Ministerial Regulations. The Director-General shall have the power to fix such remuneration as he deems fit taking into account his salary, the importance of the invention, benefits derived and expected to be derived from the invention and other circumstances and prescribed by the Ministerial Regulations.

Section 13

In order to promote inventive activity among government officials and employees of the government organization or enterprises, a government official or an employee of a government organization or enterprise shall have the same right as that of the employee under Section 12, unless otherwise provided by the Rules or Regulations of such department of the government or organization or enterprise.

Section 14

An applicant for a patent shall possess one of the following qualifications:

  • being a Thai national or a juristic person having its headquarters located in Thailand ; 
  • being a national of a country party to a convention or an international agreement on patent protection to which Thailand is also a party; 
  • being a national of a country which allows Thai nationals or juristic persons having their headquarters to apply for patents in that country;
  • being domiciled or having a real and effective industrial or commercial establishment in Thailand or a country party to a convention or an international agreement on patent protection to which Thailand is also a party.

Section 15

When an invention is made by two or more persons jointly, they shall apply for a patent jointly.

If a joint inventor refuses to join in an application for a patent or cannot be found or reached or is not entitled to make an application for a patent, the application may be made by the other inventor on behalf of himself.

A joint inventor who did not join in an application for a patent may subsequently make a request to join in the application at any time before a patent is granted. Upon receipt of such request, the competent officer shall notify the applicant and the joint inventor of the date on which an investigation will take place. The applicant and each of the joint applicants shall be furnished with a copy of the request.

In the investigation under the preceding paragraph, the competent officer may require the applicant and joint applicants to appear before him and answer any question or hand any document or other items to him. After such investigation and when the Director-General has made his decision, the applicant and the joint inventor shall be notified of such decision.

Section 16

If two or more persons have separately and independently made the same invention and each of them has made an application for a patent, the applicant who is the first to file shall be entitled to a patent. If the application has been filed on the same date, the applicants shall agree whether a patent should be granted to one of them or all of them jointly. If no agreement has been reached within the period prescribed by the Director-General, they shall bring the case to the Court within ninety days after the expiration of the prescribed period. If they fail to do so within such period, they shall be deemed to have abandoned their applications.

Section 17

The application for the patent shall comply with the rules and procedures as prescribe in the Ministerial Regulations.

The application for a patent shall contain:

  • the title of the invention; 
  • brief statement of its nature and purposes; 
  • a detailed description of the invention in 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 setting forth the best mode contemplated by the inventor to carry out his invention;

  • one or more clear and concise claims; 
  • other items prescribed in the Ministerial Regulations

In cases where Thailand acceded to an international agreement or cooperation on patents, the patent application which is in compliance with the requirements of such international agreement or cooperation shall be deemed to be a patent application under this Act.

Section 18

The application for patent shall relate to only one invention or to a group of inventions which are so linked as to form a single inventive concept.

Section 19

A person who has exhibited his invention in an exhibition which has been sponsored or authorized and held in Thailand by the government and applies for a patent for such invention within twelve months following the opening date of that exhibition shall be deemed to have filed his application on the opening date of the exhibition.

Section 19 bis

A person under Section 14 who has filed a patent application for an invention in a foreign country may claim the first foreign filing date as the filing date in the country if the application is filed in the country within twelve months following the first filing date in the foreign country.

Section 20

The applicant may amend his application for a patent in accordance with the rules and procedures prescribed in the Ministerial Regulations, provided that such amendment does not enlarge the scope of the invention.

Section 21

All officers whose duties are connected with patent applications shall refrain from disclosing any detailed description of the invention or permitting any person to inspect to make a copy of the detailed description of invention by any means before the publication of such application under Section 28, unless it is authorized in writing by the applicant.

Section 22

Before the publication of a patent application under Section 28, all persons who know that the application has been filed shall refrain from disclosing any information contained in the detailed description of the invention or committing any act which is likely to cause damage to the applicant, unless it is authorized in writing by the applicant.

Section 23

When secrecy is required for inventions which in the opinion of the Director-General are of interest to the national security, the Director-General shall order the applications for patents therefore to be kept in confidence unit it is otherwise ordered by him.

All persons, including the applicant, who know that the application has been ordered by the Director-General to be kept in confidence under the preceding paragraph, shall refrain from disclosing the subject matter or the detailed description of the invention to any other person, unless it is authorized by law.

Part II

Grant Of Patent

Section 24

Before granting a patent to the applicant, the competent officer shall:

  • examine the application as to its conformity with Section 17; and 
  • examine the application as to its conformity with Section 5,in accordance with the rules, procedures and conditions prescribed in the Ministerial Regulations.

Section 25

In order to facilitate the examination of a patent application, the Director-General may request any government department, unit or organization or any foreign or international patent office of organization, to examine the application as to its conformity with Section 5, 6, 7, 8, and 9, or the detailed description of the invention as to its conformity with Section 17 (3). The Director-General may treat such examination as having been done by the competent officer.

Section 26

In the examination of an application if it appears that the application relates to several distinct inventions which are not so linked as to form a single inventive concept, the competent officer shall give a notice to the applicant requiring him to separate the application into a number of applications, each of which relates to a single invention.

If the applicant files any of the separated applications within one hundred and eighty days following the receipt of such notice under the preceding paragraph, he shall be deemed to have filed that application on the filing date of hid first application.

The application shall be separated in accordance with the rules and procedures provided by the Ministerial Regulations.

If the applicant does not agree with the requirement to separate the application, he shall appeal to the Director-General within one hundred and twenty days. The decision of the Director-General shall be final.

Section 27

In the course of examination of an application, the competent officer may instruct the applicant to appear before him in order to answer any question, or to hand over to him any document or item.

If the applicant has filed on application for a patent in any foreign country, he shall submit a report of the examination of the application in accordance with the rules and procedures prescribed by the Ministerial Regulations.

If any document to be filed is in a foreign language, the applicant shall file such document accompanied by translation in Thai.

If the applicant fails to comply with the instruction of the competent officer under the preceding paragraph, or fails to submit the examination report within ninety days in accordance with the second paragraph of this Section, he shall be deemed to have abandoned his application. In case necessity, the Director-General may extend such period as he deems appropriate.

Section 28

Where the competent officer has submitted the examination report to the Director-General,

  • if it appears to the Director-General that the provisions of Section 17 have not been complied with, or the invention is not patentable under Section9, the Director-General shall reject the application and the competent officer shall notify the applicant of the rejection by a return registered mail or by any other method prescribed by the Director-General within fifteen days from the date of rejection by the Director-General; or 
  • if it appears to the Director-General that the provisions of Section 17 have been compiled with and it is not an unpatentable invention under Section 9, the Director-General shall, in accordance with the rules and procedures in the Ministerial Regulations, order the application to be published. Before the publication is made, the competent officer shall, by any method prescribed by the Director-General or by a return registered mail, notify the applicant to pay the publication fee. If the applicant fails to pay the fee within sixty days from the date of receipt of the notice, the competent officer shall once again notify the applicant by a return registered mail. If the applicant fails to pay the publication fee within sixty days from the date of receipt of such notice, he shall be deemed to have abandoned his application.

Section 29

After the publication of the application under Section 28, the applicant may request the competent officer to proceed with the examination as to its conformity with Section 5 either within five years after the publication of such application or, in cases where there is an opposition and an appeal is taken, within one year after the final decision has been made, depending on which period expires last. If the applicant fails to make such a request within said period, he shall be deemed to have abandoned his application.

If the Director-General requests any governmental department, unit or organization or any foreign or international patent office or organization to examine the application under Section 25, and there is some expense derived from such examination, such expense shall be paid by the applicant within sixty days after he has been notified by the competent officer. If the applicant fails to pay the expense within the said period, he shall be deemed to have abandoned his application.

Section 30

Where an application for a patent has been published under Section 28, if it appears that it does not comply with the provisions of Section 5, 9, 10, 11 or 14, the Director-General shall refuse the grant of a patent. The Director-General shall refuse the grant of a patent. The applicant as well as the other party to the opposition proceedings under Section 31 shall be notified of such decision. The decision of the Director-General shall be published in accordance with the rules and procedures prescribed by the Ministerial Regulations.

Section 31

Where an application for a patent has been published under Section 28, any person who thinks that he, not the applicant, is entitled to a patent, or that the application does not comply with the provisions of Section 5, 9, 10, 11 or 14 may give notice to the competent officer of opposition to such application within ninety days following the publication of the application under Section 28.

Where an opposition has been made in accordance with the preceding paragraph, the competent officer shall send a copy of such notice to the applicant. The applicant shall file with the competent officer a counter-statement within ninety days following the receipt of the copy of the notice. If the applicant fails to file such counter-statement within said period, he shall be deemed to have abandoned his application.

A notice of opposition and counter-statement shall be supported by buttressing evidence.

Section 32

In an opposition proceeding, the opposing party and the applicant may introduce any evidence or make any additional statement to support the ground on which they rely in accordance with the procedures prescribed by the Director-General.

Where the Director-General has made his decision under Section 33 or Section 34, the applicant and the opposing party shall be notified of the decision with the reasons on which it is based.

Section 33

Where a request for examination is made under Section 29 by the applicant for an examination and the competent officer has made examination under Section 24, the competent officer shall submit his examination report to the Director-General.

When the Director-General has considered the examination report and sees no reason to refuse the grant of a patent, and there has been no opposition under Section 31 or there has been an opposition but the Director-General has decided that the invention belongs to the applicant, the Director-General shall order that the invention is to be registered and granted to the applicant. The competent officer shall notify the applicant that the fee must be paid for the grant of a patent within sixty days from the receipt of such notice.

When the fee has been paid in accordance with the preceding paragraph, the invention shall be registered and a patent granted to the applicant within fifteen days following the payment of the fee, but not before the expiration of period prescribed in Section 32. If the fee is not paid within the period prescribed in the preceding paragraph, the applicant shall be deemed to have abandoned his application. The patent shall be in the form prescribed by the Ministerial Regulations.

Section 34

Where there is an opposition and the Director-General has decided that the invention belongs to the opposing party, the Director-General shall reject the application.

Where the decision of the Director-General rejecting the application is not appealed by the applicant or is appealed and the Board or the Court has made a final decision, if the opposing party has filed an application for a patent within one hundred and eighty days after the rejection by the Director-General or from the date on which the final decision is made, as the case may be, he shall be deemed to have filed his application on the filing date of the applicant, and the publication of the application for a patent of the applicant made under Section 28 shall be deemed to be the publication of the application of the opposing party. In the latter case, no person may oppose the application of the opposing party on the ground that he has better rights in the invention than the opposing party.

Before granting a patent to the opposing party, the competent officer shall examine the application is accordance with Section 24. The provisions of Section 29 are also applicable to the application of the opposing party.

 

Part III

Rights Conferred By The Patent

Section 35

An invention patent shall have a term of twenty years from the date of filing of the application in the country. The term of a patent shall not include the period during which court proceedings are taken under Section 16, 74 or 77 sexies.

Section 35 bis

Any act in violation of Section 36 committed before the grant of a patent shall not be deemed to be an infringement of the patentee's rights unless the act is in respect of the invention under the pending application already published under Section 28, the person so acting knowing of the filing of the patent application or having been informed in writing that a patent application has been filed for the invention, in which case the applicant shall be entitled to damages from the infringes. A compliant for such damages shall be filed with the court after the patent is granted.

Section 36

No other person except the patentee shall have following rights:

  • where the subject matter of a patent is a product, the right to produce, use, sell, have in the possession for sale, after for sale or import the patented product; 
  • where the subject matter of a patent is a process, the right to use the patented process, to produce, use, sell, have in the possession for sale, offer for sale or import the product produced by the patented process.

The preceding paragraph shall not apply to:

  • any act for the purpose of study, research, experimentation or analysis, provided that it does not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner; 
  • the production of the patented product or use of the patented process, provided that the producer or user, in good faith and without knowing or having no reasonable cause to know about the patent application, has engaged in the production or has acquired the equipment therefore prior to the date of filing of the patent application in Thailand, Section 19 bis not applicable hereto; 
  • the compounding of a drug specifically to fill a doctor's prescription by a professional pharmacist or medical practitioner, including any act done to such pharmaceutical product; 
  • any act concerning an application for drug registration, the applicant intending to produce, distribute or import the patented pharmaceutical product after the expiration of the patent term; 
  • the use of a device forming the subject of a patent in the body of a vessel or other accessories of a vessel of a country party to an international convention or agreement on patent protection to which Thailand is also party, when such a vessel temporarily or accidentally enters the waters of Thailand, provided that such a device is used there exclusively for the needs of the vessel; 
  • the use of a device forming the subject of a patent in the construction or other accessories of an aircraft or a land vehicle of a country party to an international convention or agreement on patent protection to which Thailand is also party, when such aircraft or land vehicle temporarily or accidentally enters Thailand. 
  • the use, sale, having in possession for sale, offering for sale or importation of a patented product when it has been produced or sold with the authorization or consent of the patentee.

Section 36 bis

The scope of the rights of the patentee under Section 36 in respect of a patented invention shall be determined by the claims. In determining the scope of the claimed invention, the characteristics of the invention as indicated in the description and the drawings shall be taken into account.

The scope of protection for a patented invention shall extend to the characteristics of the invention which, although not specifically stated in the claims, in the view of a person of ordinary skill in the pertinent art, have substantially the same properties, functions and effects as those stated in the claims.

Section 37

The patentee shall have the right to use the word "Thai Patent," its abbreviation or any foreign word of the same meaning on the product, the container or package of the product, or in the advertisement of the product.

The indication under the first paragraph shall be accompanied by the patent number.

Section 38

The patentee may authorize any other person, by granting a license, to exercise the rights conferred to him under Section 36 and Section 37, and may assign his patent to any other person.

Section 39

In granting a license under Section 38,

  • the patentee shall not impose upon the licensee any condition, restriction or any royalty term which is unjustifiably anti-competitive.

Conditions, restrictions or terms which is unjustifiably anti-competitive shall be prescribed in the Ministerial Regulations;

  • the patentee shall not require the licensee to pay royalties for the use of the patented invention after the patent has expired in accordance with Section 35.

Conditions, restrictions or terms concerning royalties which are contrary to the provisions of this Section are null and void.

Section 40

Subject to Section 42, in the absence of any provision to the contrary between the parties, a joint owner of a patent may, separately, exercise the rights conferred under Section 36 and Section 37 without the consent of the other joint owner, but he may grant a license or assign the patent only when it is consented to all joint owners.

Section 41

The license contract and the assignment of a patent under Section 38 shall be in writing and registered in compliance with the requirements and procedures prescribed by the Ministerial Regulations.

If it appears to the Director-General that a clause in a license contract is contrary to the provisions of Section 39, the Director-General shall submit such contract to the Board. If it is held by the Board that the contract is contrary to the provisions of Section 39, the Director-General shall refuse the registration of such contract, unless it may be assumed under the circumstances of the case that the parties intended the valid part of the contract to be severable from the invalid part. In the latter circumstances, the Director-General may order the registration of the valid part of the contract.

Section 42

The transfer of a patent by succession shall be in compliance with the rules and procedures prescribed by the Ministerial Regulations.

PATENT ACT B.E. 2522 has been amended by the Patent Act (No.2) B.E. 2535 and the Patent Act (No.3) B.E. 2542

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intellectual property law