An Analysis of Patent Term Adjustment for Adoption in Thailand

Abstract

          This article focuses on the measure to compensate for the time taken to issue a patent by the Department of Intellectual Property by providing an extension of the term of a patent. In issuing each patent following an application filed to the Patent Office, a period spent during the patent registration is uncertain depending on complexity and fields of the invention. Moreover, in most cases, the process takes so long as if it were the punishment for an applicant who intends to obtain a patent, thereby resulting in a loss of revenue.

          The patent term adjustment system does exist and is enforced in several countries, but Thailand does not adopt this system nor provide a similar measure. According to the existing law, there is no specific provision as to the time within which the whole process of registration must be completed. Although Thailand's administrative law affirms the right of individuals to bring a case before the Administrative Court in the case of an administrative agency or a state official neglecting official duties required by the law to be performed or performing such duties with unreasonable delay, there exist no determinative indication as to presents; it is not a defensive measure nor a distinctive provision that what exactly amounts to unreasonable delay. Hence, there is no guarantee that there will be no unreasonable delay in the patent registration process. Other laws cannot apply to this kind of cases because of a simple but important thing which is the nature of patent. Therefore, individuals should not only have the right to bring an action against the Government Office concerned but should also be able to receive a proper remedy for the delay in the patent registration process when such delay is not attributable to them.

          Presented in this article are the concepts and regulation of the United States, Singapore, and South Korea concerning the patent term adjustment system, and legal analysis in response to the ongoing problems in Thailand. The author suggests that Thailand's patent law should provide a remedy for patentees affected by procedural delay caused by the Patent Office. To this end, patentees should be compensated for the delay in the patent registration process, in the form of the patent term adjustment, that is, by being granted an extension of the term of a patent.