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May 27, 2022

The Thai Bayh-Dole Act: A New Dawn for Government-Funded Research in Thailand

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The Thailand Research and Innovation Utilization Promotion Act B.E. 2564 (2021) (TRIUP Act), which is also referred to as the Thai Bayh-Dole Act, came into force on May 7, 2022. The enactment of the TRIUP Act is a culmination of years of deliberation by the Thai government and various stakeholders, and is modeled after the success of the adoption of the Bayh-Dole Act in other jurisdictions, such as the United States, Japan, and Korea.

Under existing intellectual property laws in Thailand, patentable inventions are owned by the employer, hirer, or commissioning party by default, unless they explicitly agree to a different arrangement with the inventor. Public research organizations and government agencies in Thailand have always had their own institutional policies addressing the ownership, management, and exploitation of intellectual property rights. While certain government funding agencies may co-own such intellectual property rights with the relevant research institutes, some have adopted a more restrictive approach by retaining full ownership of any intellectual property rights arising from research and development efforts carried out using their funds. Instead of allowing the inventors to have full ownership rights over their inventions, these funding agencies would grant them a license instead.

The promulgation of the TRIUP Act changes this. Under this new law, inventions made with the government’s funding belong to their inventors (e.g., universities and research institutes).

Overview

The TRIUP Act requires fund recipients and researchers (usually represented by their employing institution) who wish to own their research or innovation results to disclose them to the funding government agency or organization within a specified period, and to notify the funding party of their intention of ownership together with a commercialization plan. If a fund recipient or researcher fails to do so, the research or innovation results will belong to the funding party instead. The funding government agency or organization is also granted delayed march-in rights, which are rights allowing them to intervene in the commercialization of the research and innovation results if the funding recipient fails to do so within two years or within a period specified by the Science, Research, and Innovation Promotion Committee.

Notwithstanding the ability of fund recipients and researchers to secure ownership of their research and innovation results under the TRIUP Act, if a government agency jointly funds the research with other government agencies or private organizations, the ownership of the research and innovation results will be as stipulated in the relevant joint research funding agreement. Similarly, when a public higher education institution engages in research and development work using their own funds or other private funds, the ownership of the ensuing research and innovation results will be as stipulated in the relevant research funding agreement.

Similar to existing provisions on compulsory licensing and national emergency exceptions under Thailand’s Patent Act B.E. 2522 (1979), as amended up to 1999, the TRIUP Act also empowers the prime minister to issue compulsory licensing orders for the exploitation of research and innovations resulting from the use of government grants in times of national emergency, such as needing to maintain the security and safety of the country, or preventing or mitigating public disasters. Further, the Science, Research, and Innovation Promotion Committee also reserves the right to order the transfer of ownership of research and innovation results to a government agency upon payment of fair compensation to the fund recipient, if the committee deems that this would better benefit the general public and society.

Practical Implications

The enactment of the TRIUP Act is a remarkable development for Thailand, as the law empowers universities and research institutes to own and manage their intellectual property rights. With ownership comes the freedom and autonomy to negotiate licensing terms, thereby encouraging commercialization of research findings and new technologies. The shift of the incentive structure under the TRIUP Act further incentivizes researchers and scientists to carry out research and development activities driven by market demand.

Apart from the inherent potential to democratize access to new technology across Thailand, the empowerment of the country’s higher learning institutions will also elevate their research performance and therefore improve and further solidify the leadership of Thai institutions in global university rankings and ratings by members of the academic community.

With the decentralization of intellectual property ownership, the TRIUP Act is expected to encourage the creation of more technology startups and spinoffs in Thailand, in line with the country’s goal to move toward a value-based economy driven by innovation, technology, and creativity (as laid down in the Thailand 4.0 strategy, for example).

Nevertheless, there are exemptions to the application of the TRIUP Act. For example, the law does not apply to research and innovations related to military technology, or research and innovations that are deemed to bring great benefit to society or to compatriots—a provision that is arguably broad and subjective in its definition. The rights granted to fund recipients by the TRIUP Act are also not absolute in nature, since the funding agency’s consent must be obtained before the fund recipient is allowed to assign ownership of the research and innovation results to third parties.

It is therefore important for universities and research institutes to now review their existing policies governing the management and commercialization of intellectual property rights to ensure that these policies align with the requirements and obligations imposed by the TRIUP Act, and to harness the full potential of their institutional research and innovation efforts.

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