The legal protection of breeder's rights for new plant varieties in Thailand: The need for law reform considering the International Convention for the Protection of New Varieties of Plants 1991

• Author: Noppanun Supasiripongchai
• DOI: http://doi.org/10.1111/jwip.12149
• Date: 01 July 2020
• Published date: 01 July 2020

J World Intellect Prop. 2020;23:202–231.wileyonlinelibrary.com/journal/jwip202

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© 2020 John Wiley & Sons Ltd

DOI: 10.1111/jwip.12149

ORIGINAL ARTICLE

The legal protection of breeder's rights for new plant

varieties in Thailand: The need for law reform

considering the International Convention for the

Protection of New Varieties of Plants 1991

Noppanun Supasiripongchai

School of Law, University of Phayao, Phayao,

Thailand

Correspondence

Noppanun Supasiripongchai, School of Law,

University of Phayao, 19 Moo 2, Phahonyothin

Road, Maeka, Muang, Phayao 56000, Thailand.

Email: noppanun.su@up.ac.th

Funding information

The University of Phayao (UP), Research Grants

Under National Budget, Grant/Award Number:

Contract No. R020057211061

Abstract

This article examines the possible changes to the provisions

on the protection of new plant varieties under the Plant

Variety Protection Act B.E. 2542 (A.D. 1999), or the Thai

PVPA 1999, if Thailand chooses to ratify the 1991 Interna-

tional Convention for the Protection of New Varieties of

Plants, or the UPOV Convention 1991. It confirms the need

to develop the Thai PVPA 1999, given that several ASEAN

countries have already ratified the UPOV Convention 1991,

making it the new standard for new plant variety protection

in the Southeast Asian region. It argues that although the

current provisions of the Thai PVPA 1999 appear to meet

the minimum standards of protection under the Agreement

on Trade‐Related Aspects of Intellectual Property Rights

(TRIPS Agreement), they still fall short compared with the

UPOV Convention 1991 provisions. This article asserts that

to make the provisions of the Thai PVPA 1999 consistent

with those of the UPOV Convention 1991, several

provisions of the former—such as the scope of breeder's

rights, exceptions, and the duration of protection—must be

further developed.

KEYWORDS

protection of breeder's rights, protection of new plant varieties,

Thai Plant Variety Protection Act 1999, UPOV Convention 1991

1|INTRODUCTION

The Plant Variety Protection Act B.E. 2542 (A.D. 1999), hereinafter referred to as the Thai PVPA 1999, involves the

protection of (a) new plant varieties, (b) local domestic plant varieties, and (c) general domestic plant varieties and

wild plant varieties. However, this article only covers the provisions on the protection of new plant varieties of the

Thai PVPA 1999 which provide a sui generis system that protects new plant varieties and breeder's rights and may

be considered as a form of intellectual property right. Some commentators refer to breeders’rights as the

intellectual property rights of breeders of new plant varieties (Di Fonzo, Nardone, Fathinejad, & Russo, 2019).

This article is divided into five sections. Section 1provides a brief introduction to the topic. Section 2inspects

the relevant provisions on the protection of new plant varieties under the Agreement on Trade‐Related Aspects of

Intellectual Property Rights, hereinafter referred to as the TRIPS Agreement. Section 3highlights the need for

Thailand to develop the Thai PVPA 1999 provisions to make them consistent with the International Convention for

the Protection of New Varieties of Plants 1991, hereinafter referred to as the UPOV Convention 1991. It discusses

how the provision on prospective Free Trade Agreements (FTAs) that Thailand will sign with the United States and

the European Union (EU) in the future also requires the contracting countries to ratify the UPOV Convention 1991.

This is why this article only focuses on the current UPOV Convention 1991, in spite of the existence of other UPOV

Conventions held in 1961 (and amendments in 1972) and in 1978 (Medaglia, 2010). Section 4provides a

comparative analysis of the provisions of the Thai PVPA 1999 and the UPOV Convention 1991. Section 5

concludes the article with proposed amendments to the provisions for the protection of new plant varieties of the

Thai PVPA 1999 to make them consistent the UPOV Convention 1991 standards.

2|PROTECTION OF PLANT VARIETIES UNDER THE TRIPS AGREEMENT

The TRIPS Agreement is not an independent international agreement; instead, it is part of the World Trade

Organization (WTO; Ilbert, 2016; Munyi, 2015). The WTO is an intergovernmental organisation initiated by the

agreement establishing the WTO (WTO Agreement) to regulate world trade; while the WTO Agreement provides

the institutional framework for administration of the WTO (WTO, 2007). Several agreements which are annexed to

the WTO Agreement contain detailed stipulations for trade in goods and services, settlement of disputes

concerning WTO provisions, and the trade‐related aspects of the intellectual property rights in the TRIPS

Agreement (WTO, 2007). These agreements were reached after the WTO Agreement came into force in 1995 and

were unanimously accepted by all WTO members, as it was a basic condition for membership in the WTO

(WTO, 2007). The TRIPS Agreement is essential for several reasons. First, it established a set of substantive

minimum standards for intellectual property protection such as the scope and use of intellectual property rights of

all WTO members (Finger, 2000; Gervais, 2012; Goldstein, 2001; Jonge & Munyi, 2016). Second, it provides civil

and criminal enforcement obligations, which include border measures, that all WTO members must implement

(Goldstein, 2001; Munyi, 2015). Third, it established certain procedural requirements for the administrative

acquisition and maintenance of intellectual property rights (Goldstein, 2001). Fourth, it set up a dispute resolution

procedure for any disagreements among WTO members over its implementation (Goldstein, 2001).

All WTO members are required to adopt consistent policies and laws on the protection of intellectual property

that comply with the TRIPS Agreement and this includes plant variety protection (Azam, 2017; Finger, 2000;

Kingston, 2011; Patnaik, 2018). Thailand is a member country of the WTO and is, therefore, required to implement

the TRIPS Agreement (WTO, 2019). Article 27.3(b) of the TRIPS Agreement particularly requires the contracting

countries to protect plant varieties by stipulating 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….”

1

The stipulation serves to

encourage plant breeders to invest in the research and development of new plant varieties and improve on existing

ones (Singh, 2007; Thikkavarapu, 2018). It also provides breeders a certain level of guarantee to offset the risks and

SUPASIRIPONGCHAI

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