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IV. DURATION OF PROTECTION
The Patent Act B.E. 2522 provided patent protection for inventions for up to 15 years from the date of filing of the application in Thailand.53 A patentee has an obligation to pay annual maintenance fees, in order to keep his patent valid for the full term.54
The duration of exclusive rights conferred by the Thai law is uniform irrespective of the type of inventions. Unlike the EC countries, Thailand does not recognise extension of the patent term for pharmaceutical inventions whose patent term is taken in obtaining a marketing authorisation.55
Instead of a fifteen-year term of patent protection, the new patent law extends the term of patents for inventions to 20 years from the filing date.56The extension of the patent term was the result of the US Government is still not satisfied. This is because the revised law maintains that patent protection would not be retroactive to cover pharmaceutical products not yet available in the Thai market. The US insisted that the Thai patent law must provide protection to drugs registered outside the country in the past 10 years but not yet marketed in Thailand.
One of the main objectives of the patent system is that the exclusive monopoly granted by the State should enable inventors to be adequately compensated for their creative efforts, and expenditure. Having a reasonable period of protection is, therefor, important to the extent that it is an effective means of guaranteeing profits to the inventor, while, at the same time. Ensuring that the invention will ultimately enter the public domain.
However, it is not always easy to determine the best possible duration of a patent right. A long term of protection would provide inventors the freedom to charge unjustifiably high profits. In contrast, a very short patent term may not allow inventors to recoup their R&D investments. A crucial problem is : how long should an appropriate term of patent protection be? According to UNCTAD, "There has been no thorough economic analysis to determine an optimum duration."58 There is no clear answer even in developed countries like the United Kingdom, whose length of patent protection protection has been changed several times. The focal point of this problem is whether a proper length of patents should be based on the private interest of inventors only, or social costs and benefits should also be taken into account.
If the patent term is determined on the basis that patent protection guarantees inventors a reasonable return, this will raise the question : what should be a reasonable rate of return? In order to arrive at an appropriate patent period, several factors have to be taken into consideration. These include all costs and expenses which the inventor invested in R&D, production, marketing, etc. Also, total profits and benefits involved in the patented technology, e.g. Government funding, national and worldwide turnover, licensing fees, and so on, must be considered in deciding what remuneration would be adequate for the inventor. If the calculation of an optimum duration is based on these factors, there can be no doubt the patent term would vary from invention to invention, rather than as a single duration.
As far as the laws of developing countries are concerned, the duration of patents provided for foreign and national inventions may be different. Since most foreign inventions have been patented and exploited in foreign countries, this means that the inventor has yielded some return on the investment, and the most efficient methods to work it would have been found.59 Whenathe determination of the patent term is based on the private interest of the patent holder, the granting country should be entitled to provide shorter periods of protection to foreign patents for this reason.
If the length of protection is determined on the basis of public interest, the nature and merits of the invention in relation to the public will be the main factors for the calculation of patent period. In other words, the duration of protection would depend on the patenting policy of a particular country. Some countries might provide patent protection based on the type of patent. For example, a utility model is granted for a shorter period of protection than a patent.60
Duration of protection may also be based on whether the patented invention is sufficiently being worked in the country. For example, a patent is granted for a maximum possible duration of twenty years, but the patent term is divided into an initial period of twelve years and into two extension periods of four years each. Each extension period is obtained on the condition that the patented invention is being used or manufactured industrially in the country.61. As pointed out by Parker, most patents are not used for their full term due to technological and economic obsolescence.62 If the invention is no more being exploited by the patentee, the State should be able to terminate the monopoly rights for the interest of others to exploit it without the patentee's authorisation.
An optimum duration may also be determined depending on the branch of technology to which the invention belongs. The period of protection for an invention that is important in view of policy consideration of the granting country may be shorter than inventions in others sectors. When a country considers whether patent protection on some kinds of inventions will impose restrictions on the national economy and decides not to provide patent protection to such inventions, this means that the "optimum duration of patents in the excluded sectors is considered to be zero."63
In practice, the effective economic life of a patent can be much longer than that provided by the law. There are two reasons for this. First, a patent holder can undertake R&D for improved technology from the original invention, and he can extend his monopoly position beyond the life of the original patent by patenting such an improved invention. Secondly, a patentee can also extend the monopoly beyond the patent life by using marketing strategies. By the time the patent term expires, production and marketing of the patented product may have developed on a large scale, and this can give a strong market position to the patentee. In this case, goodwill and a trademark may be more important than patent rights.64
To reiterate the main points of this section : the proper term of patent for inventions, regardless of whether it is determined on the basis of private or public interest, should not be a fixed period but should vary from sector to sector and country to country. It is irrational that the patent term must be granted as a single duration of 20 years for all fields of technology, in order to allow inventors to recoup R&D expenditures. It is also absurd that the patent law should allow back-dating of protection for drugs already invented but not yet on the market, since there is no justification for any State to provided unreasonably considerable profits to foreign inventors.
53 Patent Act B.E. 2522, s.35.
54 Patent Act B.E. 2522, amended by Patent Act B.E. 2535, ss.43 and 44
55 The extent of discussions on this iassue see Whaite, R. and N. Jones, Comments : Pharmaceutical Term Restoration : The European Commission's Regulation, 9 EIPR , p.324.
56 Ibid, s.35.
58. UNCTAD, The Role of the Patent System in the Transfer of Technology to Developing Countries, TD/B/AC.11/19/Rev. 19,1975, para.351.
59 UNCTAD, The International Patent System: The Revision of the Paris Convention for the Protection of Industrial Property, TD/B/C.6/AC.3/2, 1977,p.26.
60 This type of legal protection can be found in the patent laws of Japan and the People's Republic of China. See Xintian, op.Cit; and Chen, The Utility Model System and its Benefits for China-Some Deliberations Based on German and Japanese Legislation, IIC,Vol.14,1983.
61. WiPO, WIPO Model Law for Developing Countries on Inventions, at p.87. The patent laws of Colombia, Ecuador and Peru, have adopted this system with shorter periods of protection.
62 Parker, J.E.s., The Economics of Innovation. Longman, London, 1987, p.305.
63 UNCTAD, The Role of the Patent System in the Transfer of Technology to Developing Countries, para.353.
64 Ibid, para.359