How can Thailand legally deal with the problem of bio-prospecting?

Abstract

Bio-prospecting has become a controversial issue under IPRs scheme when TRIPs allow monopoly rights of the product or process derived of biological resources without recognizing the ownership of the biological resources. TRIPs has written to protect the intellectual property rights around the world by bringing contracting parties under common international rules with an effective enforcement mechanism. As a consequence, many nations especially developing nations who have abundant biological resources consider that they could not be of great benefit from being an owner of these resources under the TRIPs’ IPRs scheme as long as the TRIPs agreement still doesn’t recognize the sovereignty of state over biological resources. One of the solutions for the bio-prospecting problem is to make change of a patent law by adding the requirement which recognizes the sovereignty of state over biological resources. However, this thesis has explained later that adding extra criteria of patentability by amending the patent law under the TRIPs is politically difficult. Therefore, this thesis sees the solution to the problem is to find out how the country can control the access and use of biological resources in a fair and equitable matter before it applies for patent protection. This thesis has chosen Thailand as a reference because Thailand still does not have comprehensive condition and tool that can deal with the bio-prospecting problem. This thesis has proposed a solution to the bio-prospecting problem by placing conditions and tools in the legislation or so called “Biodiversity Legislation”. The thesis views that the legislation equipped with the conditions and tools will be the best way to escape the rigidity of the TRIPs agreement and political deadlocks and additionally can focus on any biodiversity issues in the future. It should be noted that the conditions and tools to be equipped in the legislation are Prior Informed Consent, the Benefit Sharing Scheme and Social Impact Assessment. These conditions and tools are a reflection of the recognition of sovereignty of state over biological resources. This thesis has concluded that a new “Biodiversity Legislation” equipped with conditions and tools will help Thailand to deal with the problem of bioprospecting effectively and efficiency under the international rule and keep up Thailand competitiveness and benefit from bio-prospecting activities and technological development in the capitalistic world.