If further proof were needed after the Dhammakaya fiasco that the abuse of the interim charter's Section 44 is becoming excessive, last week's decree will suffice. Prime Minister Prayut Chan-o-cha signed the 138th edict to target intellectual property. The order aims to cut red tape and clear some 12,000 pending patents. While this will undoubtedly bring smiles in the US Trade Representative's office, the prime minister's staff should reconsider this hasty move that creates more problems than it solves.
The job of the patent office is to provide legal protection to inventors. Patents, like copyright and trademarks, give exclusive rights to produce and sell inventions, while patent laws establish mechanisms to punish those who copy them. Unless certain exceptions apply to extend the period, the limitation for protection is 20 years. But there is abuse of the system, and Prime Minister Prayut and his Section 44 team seem to be unaware of it. It is this abuse that needs to be addressed through the closing of loopholes that allow exploitation by big business, not the use of Section 44 that ultimately will give large firms even more opportunities to bend the law.
Any conversation about patents invariably turns to discussion about pharmaceuticals. Public outrage over drug prices is common. Even the World Health Organisation website currently features a photo with a sign that says, "To hell with patent rights when it comes to our lives."
Gen Prayut's misguided use of Section 44 to resolve the local patent mess is no exception. While the regime studiously ignores the real issues, its spokesmen are not making any effort to deny that the major reason for trying to solve this intractable problem of pending patents is the annual report by the US Trade Representative. The "2017 Special 301 Report", named for the punitive section of US intellectual property law, has filed Thailand under "world's worst violators" for 10 years.
This stems from what Washington sees as pathetic Thai protection for international patents, specifically drugs. Pharmaceutical firms -- "Big Pharma" in the jargon of the day -- has enormous clout in US politics. It also happens to lie at the epicentre of current patent debates. Prime Minister Prayut might have thought that clearing 12,000 pending patent applications was an obviously good reason to employ Section 44 yet again. The opposite is true, however.
This is not an issue that is easily solved, nor universally viewed. Where Gen Prayut sees red tape mucking up patents, experts on patent law and activists see drug companies delaying their applications. Why would a big company supposedly eager to get their drugs to market and thrill stockholders with high profits do this? Because the years that a patent spends in the Ministry of Commerce's Department of Intellectual Property are bonus years, tacked on to the end of an already excessive period of full, legal protection -- years in which no other company, government or private party can make a generic version of a particular drug.
That is because the law protects a product awaiting a patent just as if the patent had already been issued. Protection begins the day, indeed the very minute that a patent application is made. Because those patent applications are generally public, protection must be provided so no one can legally copy inventions. Big Pharma twists this into a massive advantage that adds years of patent protection before the invention or medicine enters the public domain.
Whether Gen Prayut meant to help clear delayed patents or make it easier for Big Pharma to exploit the process is beside the point. The Section 44 order for patents is out of touch with popular opinion and doing what is right. The prime minister should reconsider this use of the draconian law.