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

Bad Patents or Bad System?
It is likely that this analysis of biopiracy cases in Thailand raises more questions than it
answers. This highlights the need for ongoing research into the operation of the patent system
as well as some more specific details of the traditional conservation and utilisation of herbs
and plants. It also suggests further inquiry into means to prevent ‘biopiracy’.
It should be noted that despite the fact that Thailand doesn’t allow patenting of plant genetic
resources, plant varieties and animals, that doesn’t stop other countries such as the US from
patenting ‘inventions’ derived on plant genetic material or traditional knowledge from
Thailand, or seeking other forms of IP protection. Hypothetically, this may ultimately result in
some form of exclusion from a material or product originally from Thailand, or based on the
knowledge of Thais. If the currently negotiated Thai-US FTA includes life patents, the US
may be able to patent and sell products derived from Thai genetic resources back to Thailand
and exclude them from improper use of this material (but this material must have been
changed in some way to make it an ‘innovation’). The difficulty and expense for which it is
possible to chase up such cases may be prohibitive for local Thai groups and represents an
unnecessary strain on the Thai bureaucracy. Arguably the ability to obscure some of the
details involved in the chain-of-invention is all too easy for a patent applicant and this has
developed calls to amend the patent system internationally.
As the number of documented ‘biopiracy’ cases rises, and due to the absurdly broad nature of
some patents 38 it seems clear that the system is not adequately coping. So what can be done?
There are a number of emerging questions. Is it just a matter of improving the patent
examination process, or is the examination process inherently limited such that it deserves a
disclosure requirement? Given the frequent claims that the patent system is already
‘overburdened’ as patent application numbers continue to rise, does this mean that patent
examination quality will continue to decline? Although NGOs and concerned researchers
have done well to uncover and document a growing number of biopiracy cases, why should
the burden be on them? Can bad patents be simply remedied through the courts or is the
burden of legal and transaction costs too high for those who feel they have been exploited?
These are questions for which the WIPO Secretariat, the Parties to the IGC, and the TRIPS
Council have been increasingly searching for answers. The Thai bureaucracy has also
consequently been reviewing the developments of international fora, in other countries and
seeking to understand its own unique needs and responses.
38 See for example the Yellow Enola Bean Case in Dutfield (2004).
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