Governance and Micropolitics of Traditional ... - IPRsonline.org

over pirated or counterfeit seeds and other related products, suggesting that the
implementation and enforcement of the Plant Variety Protection Act (1999) is inadequate. It
also notes a growing problem of counterfeit pharmaceuticals.
In Thailand patents on plants and animals, as well as pharmaceutical patents have been area of
most concern for public interest groups, academics and NGOs. Such groups would like to see
plants and animals remain exempt from patent protection, and would like to see the standard
of patent protection for pharmaceuticals not extended 22 . Furthermore the disclosure of origin
where patents have been issued on inventions which utilise genetic resources in the US are
desired on the FTA agenda by Thai public interest groups. These groups have been
particularly persuasive and vocal to date, however the content of the FTA negotiations are
confidential leading to criticism of the way the Thai Government has handled matters of
participation (See section 3.8 for more details).
Past bilateral FTAs sought by the US have established a template for such negotiations, one
consistent factor of which is the pursuit of higher standards of patent and/or plant variety
protection than that required of WTO member states by the TRIPS Agreement. Kuanpoth
(2005) provides a useful side-by-side comparison of the FTA provisions of the TRIPS
Agreement, the US-Vietnam Bilateral Trade Agreement, and the US-Singapore FTA with the
implication that the standards demanded will continue to rise. This is indicative that the
outcome of the FTA could go against the wishes of the broader Thai public and may have
considerable effects on economic development, science and technology, Thai society, and
most pertinent to this study, on biodiversity and traditional knowledge. Although the
consequences are unclear, if Thailand were forced to remove patent exemptions on life forms
under the FTA, it is evident that many Thai’s would view this as an action that could
accelerate biopiracy. It could also make the Acts that have been developed either partially or
completely redundant. On the other hand, the FTA represents an opportunity for Thailand to
attempt to convince the US to implement requirements such as disclosure, PIC and ABS to
their patent laws or other respective (eg biodiversity) laws. This however seems unlikely
given the stance the US has taken in recent FTAs. The political and economic bargaining
power, and even the negotiating terms of the FTA are clearly in the US’ favour.
There are other concerns related to the patenting of plants and biological materials. Thai
academic, Jakkrit Kuanpoth (2005) describes the broader potential implications below:
The patenting of life when imposed through an FTA could have a considerable socioeconomic
impact on the developing countries. Granting of patents on biological
materials such as genes will cause a power shift in agriculture towards large
biotechnology companies and will disrupt the access to essential products such as
seeds or foodstuffs the same way as patents are unfairly restricting access to vital
medicines for people in poor countries. Stricter protection for IPRs would increase
monopoly powers of the right holders, generally multinational firms, allowing them to
gain far greater control over the production chain of crops and food… Moreover, gene
patenting will have detrimental effects on the research environment and generate
negative effects on downstream innovation.
22 Particularly with regards to patent term, surgical methods and diagnostics, and data exclusivity requirements
on the testing of drugs.
29