Patent Proctection, Enforcement And Court System In Thailand

PROTECTION

Question 1
What is the term of protection of a patent in Thailand?

Answer 1
In Thailand, a Patent last for twenty (20) years counted from the date of filing and a Petty patent last 10 years from the filing date.

Question 2
Is it possible to extent the lifetime of a patent?

Answer 2
Only possible in the case of petty patent.

ENFORCEMENT

Question 1
What are the types of patent enforcement action are available in Thailand?

Answer 1
a) Civil action;
b) Criminal action.

Question 2
How can the patent owner most effectively make his point to stop an infringement?

Answer 2
By filing a criminal action.


Question 3
Are protective orders available in Thailand?

Answer 3
Yes.

Question 4
Does the Malaysian patent law require the patent owner to send a cease and desist letter to an alleged infringer before a court action can be taken against him?

Answer 4
No.

Question 5
Is it possible to seek a preliminary injunction? If so, how long would this action take?

Answer 5
Possible. Time frame for an inter parte is between 2 – 4 months. If ex parte, than it would be heard urgently in a week or two.

Question 6
Is it possible to seek seizures / inspections of suspect goods?

Answer 6
Yes.

Question 7
How long would a patent infringement / patent invalidation case take?

Answer 7
1. Infringement action duration 24 – 36 months.
2. Invalidation action duration 24 – 36 months.
3. Typical cost – this can vary according to complexity of case, whether it is contested and seniority of person handling the case.

Question 8
How are damages / royalties assessed?

Answer 8
Plaintiff’s loss of profits or defendant’s account of profits.


Question 9
Can the alleged infringer sue for damages if the patent owner fails to prove infringement in court of Thailand?

Answer 9
Yes.

COURT SYSTEM

Question 1
Briefly describe any cases of patent invalidation or patent infringement in Thailand?

Answer 1
Aventis Pharma S.A. v Bioscien Company Decision No. 79/2548
The plaintiff alleged that the defendant infringed its process patent by importing pharmaceutical products created by using the patented process. The plaintiff had served a notice demanding that the infringement stop but the defendant refused to cooperate. The plaintiff sought to restrain the defendant from arranging further import of the disputed products and as well as damages. The defendant argued that their imported products were created using different process and therefore did not infringe the plaintiff's patent.

The plaintiff produced evidence demonstrating that there had indeed been an infringement. However, the court noted that since the defendant demonstrated that it had exercised due care in seeking counsel of an expert regarding the possibility of infringement, they had acted in good faith. The court therefore issued, in favour of the plaintiff, an order permanently restraining the defendant from engaging in further importation of the infringing product. However, the court refused to award plaintiff the damages, reasoning that the defendant believed in good faith that they had right to import such a product.

This case demonstrates how the court assesses and tailors the damages against infringing conducts. Thai patent law treats infringement as strict liability. However, in civil cases, the court has right to exercise its discretion as to whether damages should be granted.

Question 2
How efficient are the courts in disposing IP litigation cases in Thailand?

Answer 2
Reasonably efficient with strict guidelines.

Question 3
Are the judges technically qualified?

Answer 3
No.

Question 4
Do the courts rely on precedent cases decided in foreign countries?

Answer 4
No.

Question 5
How are foreigners treated by the courts in Thailand?

Answer 5
Same as locals.

Question 6
What is the time frame for a patent invalidation / patent infringement suit to be decided?

Answer 6
24 – 36 months.

Question 7
What step(s) must be taken to appeal a court decision in Thailand?

Answer 7
A notice of appeal is filed within 30 days from the date of the decision at the Supreme Court.