Protection of Plant Varieties in Thailand

• DOI: http://doi.org/10.1002/jwip.12026
• Date: 01 November 2014
• Published date: 01 November 2014

Protection of Plant Varieties in Thailand

Pawarit Lertdhamtewe

Bangkok University, Thailand

Thailand’s plant protection regime presents a unique sui generis plant protection system, which is used as a model by

several developing nations in Asia. The current Thai Plant Variety Protection (PVP) law has attracted some criticism,

and whether or not farmers and breeders actually benef‌it from the system is in doubt. The questions this situation raises

are: has Thailand adopted clear, coherent, and workable rules for plant variety protection in response to the needs of

the nation? By highlighting the salient features of the Thai plant protection regime, this article addresses major

concerns of the rights of farmers, local communities, and plant breeders. It is suggested that the protection of plant

varieties is vital to Thailand, considering the fact that agriculture represents a fundamental economic activity and the

livelihood of a large section of the total population; therefore, introducing IPRs in agriculture via the PVP regime is

critical to the development of agriculture in Thailand. Thus, a new approach to the IP protection of plant varieties is

desirable to ensure the unique needs of the nation, the validity of national legislation, and the long-term promotion of

agricultural development and sustainability in Thailand.

Keywords plant variety protection; sui generis; breeders- rights; farmers- rights

Introduction

Thailand’s plant protection regime currently represented by the Plant Variety Protection Act B.E.2542

(AD1999) (PVP Act)

1

is an outcome of Thailand’s joining the World Trade Organization and adherence to

the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

2

The Thai

PVP Act represents a sui generis system of protection for plant varieties, which is different from the sui

generis model available through the International Union for the Protection of New Varieties of plants

(UPOV)

3

(Mechlem, 2010). Like other developing member countries, Thailand construed the term “sui

generis” system in TRIPS Article 27.3(b) as allowing it discretion to determine the type and design of

plant protection regime it adopted (Lertdhamtewe, 2012). In enacting the PVP Act, Thailand took

advantage of the f‌lexibility of Article 27.3(b) to establish a “self-serving” sui generis regime that took a

“balanced” approach to plant protection (Lertdhamtewe, 2012).

It is estimated that more than one-third of the 60 million Thai population (21,778, 677) are farmers

and although most of the seed today is marketed by major seed corporations, such as Chia Tai and

Monsanto, farmers are still a signif‌icant source of seed supply. Empirical evidence indicates that farmers

produce 20% of the seeds required for agriculture in Thailand (Lertdhamtewe, 2014a). To respond to the

complexity of farming in the country, the central tenet of the Thai PVP Act specif‌ically addresses

Thailand’s major concerns to protect local farming communities; at the same time, it promoted the

breeding of innovative plants by establishing intellectual property protection. Thus, the Thai PVP Act

divided plant varieties into two main categories: (1) new plant varieties, and (2) extant varieties (local

domestic plants, general domestic plants, and wild plant varieties) as a means to promote agricultural

development.

The introduction of Thailand’s PVP Act, as a result of fulf‌illing its TRIPS obligations, was noticed by

the rest of the world. Firstly, the Act highlighted the complexity of farming in the country, which required

balancing of benef‌its of both farmers and breeders (Kuanpoth, 2007; Lertdhamtewe, 2012). Secondly, the

Thai PVP Act emerged as a unique sui generis regime of plant protection, which is used as a model by

several developing nations in Asia (Lertdhamtewe, 2013a). The Thai PVP Act was mainly passed because

142 ©2014 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2014) Vol. 17, no. 5–6, pp. 142–159

doi: 10.1002/jwip.12026

Thailand hoped to benef‌it by structuring a plant protection regime to best serve its local needs

(Lertdhamtewe, 2012). However, the Thai PVP Act was not without f‌laws; it currently faces a great deal of

criticisms (Lertdhamtewe, 2013b). Whether or not farmers and breeders actually benef‌it from the system

still remains in doubt (Lertdhamtewe, 2014a). The question then presents itself: has Thailand adopted

clear, coherent, and workable rules for plant variety protection in response to the needs of the nation? This

article attempts to address this question.

The following section describes how the current PVP law came to be adopted in Thailand. Later

sections discuss the legislative framework for plant variety protection in Thailand, and address ways in

which to improve existing legal instruments governing IPR protection of farmers’ rights and plant

breeding results.

Implementation of TRIPS in Thailand

Plant variety protection was only introduced in Thailand in the f‌inal round of the General Agreement on

Tariffs and Trade (GATT) negotiations (Lertdhamtewe, 2013b). Following the conclusion of the GATT in

1994, and later, the creation of the multilateral trading system of the WTO in 1995, a minimum standard of

protection of IPRs was established under the TRIPS Agreement. The TRIPS Agreement sets out the

requirements for many forms of IPRs protection, including the protection of plant varieties. Specif‌ically,

TRIPS Article 27.3(b) states that “members shall provide for the protection of plant varieties either by

patents or by an effective sui generis system or by any combination thereof.” Therefore, as a member of

the WTO, Thailand was required to establish laws and regulations to conform with the WTO/TRIPS

requirements. In views of such a commitment, Thailand embarked on a major campaign to revamp the

legal framework of the protection of IPRs, pursuant to which outmoded laws were to be updated to

conform with the TRIPS standards. Specif‌ically, new laws were to be enacted covering IPRs that were

previously unprotected, including plant variety rights. Thus, it can be said that the motivation for Thailand

to embrace the framework for plant variety protection was the country’s commitment to the WTO/TRIPS

regime.

The process of drafting plant variety protection legislation was an ambitious one. With a view to

fulf‌illing its TRIPS obligations, Thailand asked government agencies, namely, the Ministry of Commerce

(MOC) and the Ministry of Agriculture and Cooperatives (MOAC), to study the impact and implication of

introducing plant variety protection in Thailand (Compeerapap, 1997). It appeared that the Thai Patent

Act of 1972, which was later amended in 1992, prohibited the granting of patents over living organisms,

such as plants and plant varieties. The reason for this objection can be attributable to a number of factors,

including the following: (i) the country’s level of development; (ii) the country’s historical attitude toward

the protection of IP rights; (iii) the perceived strategic cultural signif‌icance of staple food that goes against

the creation of a private property rights regime; and (iv) the perception that a patent regime unequally

enriches breeders and biotechnologists at the expense of farmers and local communities

(Lertdhamtewe, 2013a). As mentioned earlier, Article 27.3(b) of TRIPS permits WTO Members to

exclude plants from patentability and also to decline to protect plant varieties with the patent system,

provided that they protect the results of plant breeding with a comparable system. Accordingly, Thailand

has an option to enact sui generis law for the protection of plant variety rights (Kuanpoth, 2009).

In 1994, the Thai government introduced two bills related to plant variety protection with similar

contents. The only outstanding difference was that plant variety protection would be the competence of

either the MOC or the MOAC, depending on which law was accepted. It is worth noting that the contents

of these two bills were solely based on the text of the UPOV Convention. The UPOV Convention, on

which the two bills were based, was established in 1961, to ensure that Members of the UPOV Convention

acknowledged the achievements of breeders of new plant varieties by granting them IP protection on a set

Protection of Plant Varieties in Thailand Pawarit Lertdhamtewe

©2014 John Wiley & Sons Ltd

The Journal of World Intellectual Property (2014) Vol. 17, no. 5–6 143