Compulsory Licensing Measures for Pharmaceutical Products

Abstract

A patent is a type of intellectual property protected under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). The TRIPS Agreement, according to the TRIPS Flexibility principle, indeed provides members with flexibilities for implementing TRIPS provisions in the way consistent with their domestic interests. One of such flexibilities surrounds compulsory licensing measures as provided in Article 31 of the TRIPS Agreement, which are implanted into the Patents Act, B.E. 2522 (1979) of Thailand. Notwithstanding, compulsory licensing of patented pharmaceutical products under the patent law of Thailand has been claimed by other countries as plagued with defects. This article intended to provide legal analysis by comparing the patent law currently in force in Thailand with international agreements and conventions, patents laws of other jurisdictions and also Thailand’s new draft legislation on patents, on matters involving compulsory licensing in respect of patents. This study was a qualitative and documentary research. The study revealed that the Patents Act, B.E. 2522 (1979) of Thailand remains deficient on the issues concerning compulsory licensing in relation to patents. The deficiencies lie in the consideration of applications for compulsory licensing, compulsory licences, cancellation of compulsory licensing and, finally, and compulsory licensing on demand of the State.