In Thailand, the right to apply for a patent for an invention, or a design patent for a product design that has been developed by an employee, vests automatically in the employer, provided that there is no written agreement to the contrary, and:
Employees’ Right to Special Remuneration
To promote inventive activity and to give a fair share to employee inventors/creators, the Thai Patent Act entitles the employee inventor or creator to receive remuneration for his or her work. However, there are slight differences in the right to remuneration for the employees in the two scenarios above.
An employee who develops an invention or design during the execution of a contract for a commissioned work will be entitled to remuneration other than his or her regular salary only if the employer benefits from the invention or design.
It should be noted, however, that for an employee who develops an invention or design outside the scope of the employment contact, the Act does not specify that:
An additional point to consider is that an employee’s right to remuneration may not be precluded by the employment agreement. Therefore, if an employment agreement is structured in a way that attempts to prevent this type of remuneration, the relevant provision in that agreement would be deemed invalid.
Procedure for Employees to Claim Remuneration
The Patent Act is the only intellectual property-related legislation that specifically addresses employees’ rights to special remuneration if they create inventions for their employers. Under the Act and the concerned ministerial regulations, an employee who develops an invention or product design is entitled to apply for special remuneration with the Director General (DG) of the Department of Intellectual Property (DIP), regardless of whether the employer has already provided the employee such special remuneration. The DG has the discretion to set a suitable amount of remuneration for each employee, taking into account the following criteria:
This means that even if an employer has paid an employee special remuneration for an invention, the employee is still entitled to apply for an assessment of his or her entitled special remuneration from the DG of the DIP. Nevertheless, in deciding whether to grant such special remuneration to the employee and the amount of the remuneration, the DG is entitled to (and should) take into consideration any monetary awards that the employer has previously granted the employee before the application for special remuneration was filed.
Best Practices for Employers
As the Patent Act entitles employees to claim special remuneration for their inventions, employers should make sure that they have in place internal procedures setting out how to compensate employees for such special remuneration—not only to comply with the law, but also to promote creativity and innovation among their workforce. At a minimum, a company’s internal procedures on special remuneration for employees should address the following issues:
After internal regulations have been drafted, employers should also consider how to properly implement them. This is because implementation of regulations on employees’ right to special remuneration may be deemed as a change to the conditions of employment. The provisions of both Thai labor laws and employee agreements should thus be taken into consideration throughout the process.