Update on CPTPP in Thailand : From an IP Perspective
Tanakrit Tangburanakij and Radeemada Mungkarndee, Baker & McKenzie (Thailand)
The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (“CPTPP”) and Thailand’s plant varieties system has been brought to the public’s attention again, due to the International Economic Policy Committee (IEPC)’s announcement in early February 2021 that they need 3 months to study the pros and cons, in order to consider whether to join CPTPP prior to the deadline of the next round of negotiations in August 2021.
The study of pros and cons would be based on the report (the “Report”) re: impacts from joining CPTPP issued in November 2020 by the extraordinary commission appointed by the cabinet (the “Commission”). The Report concluded that Thailand is not ready for CPTPP, as there are many actions to be taken before deciding to enter into negotiations with other member states.
The Report contains a study in three main areas, namely: 1) the impact on agriculture and plants; 2) the impact on public health; and 3) the impact on economics, trade and investment. IPRs are substantially discussed in the first two areas as per the details below.
- Impact on agriculture and plants
Many observations were noted in the Report by the Commission, including concerns that small farmers and SMEs would be greatly affected due to the free market for agricultural products and assertion in plant varieties if Thailand joins CPTPP. Thus, the government should communicate to farmers regarding the pros/cons of CPTPP. In addition, CPTPP requires that, to become a member state, Thailand must be a signatory of UPOV 1991 (the International Union for the Protection of New Varieties of Plants) first. The Commission views that there are tasks to be completed prior to joining UPOV 1992, in particular that Thailand should strengthen the Thai agricultural system by providing policy support and budget allocation to plant breeding research. In addition, the government has to amend not only the plant variety protection act, but also other laws to be consistent with the Convention on Biodiversity, in order to drive Thailand to be a hub for tropical plant seeds considering we have an advantage in topography, climate, and agricultural skills.
- Impact on public health
The Commission observed that there are many issues that should be studied prior to entering into negotiation under CPTPP. For example, it is necessary to have cross organizations discussed regarding the impact on the public health infrastructure. This includes the following:
- establishing a patent linkage system between the approval of a generic drug and the patent status of its original drug (including vaccine and biologic) equivalent. This will be under collaboration between the Food and Drug Administration (FDA), Ministry of Public Health, and Department of Intellectual Property (DIP), Ministry of Commerce;
- creating a complete database regarding herbal plants in Thailand as soon as possible. Moreover, the Commission suggested establishing an organization responsible for monitoring bio-piracy. Purposes of these activities are for herbal plants’ security, regardless of whether Thailand will join UPOV 1991 or not.
In addition to the above issues, a concern regarding the deposit of biological materials according to the Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure (“Budapest Treaty”) has also been discussed in the Report. Thailand is not a member state of the Budapest Treaty, however, DIP explained to the Commission that Thailand has standards and measures that are in line with the Budapest Treaty. Therefore, there is no requirement to amend the patent act if we access the Budapest Treaty. Nevertheless, the people sector and public health sector were interested whether Thailand could raise our ability to be an International Depositary Authority (“IDA”) to serve patent applicants in deposition of biological materials. Although becoming a member state of the Budapest Treaty does not require that Thailand must have our own IDA, it is believed that our potential in biosafety and biosecurity would be better if any organizations in Thailand can be appointed as an IDA.