Report on the Status of Agricultural Biotechnology, R&D

and Intellectual Property in Malaysia and Thailand 2006

This report was prepared by Gregory C. Ellis1 in August, 2006, as part of an

externship project for the Centre for Intellectual Property Policy (CIPP) at

McGill University in Montreal, Canada. The project was a collaboration

between CIPP and the Public Intellectual Property Resource for Agriculture

(PIPRA), a non-governmental organization located in Davis, California.

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TABLE OF CONTENTS

Introduction.3

Malaysia..4

Malaysian Patents.........5

Agriculture and Biotechnology in Malaysia.........9

Research and Development in Malaysia......10

Human Resources for Science and Technology in Malaysia...17

Conclusion for Malaysia......20

Thailand. 22

Thai Patents..23

Agriculture and Biotechnology in Thailand.....26

Research and Development in Thailand......28

Human Resources for Science and Technology in Thailand...29

Conclusion for Thailand..29

Summary31

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Introduction

The intent of the non-profit public sector institutions that develop agricultural

biotechnologies for humanitarian purposes in developing countries is to provide crops

with higher productivity, greater nutritional value, and enhanced resistance to diseases.

In order to achieve their goals, these public sector entities must utilize multiple

biotechnologies. However, these biotechnologies are often protected by intellectual

property rights (IPR) owned by multiple for-profit private companies and other public

sector institutions. This phenomenon is referred to as IPR fragmentation, which can

often create challenges to the public sectors freedom to operate.

The Public Intellectual Property Resource for Agriculture (PIPRA) is a non-

governmental organization that functions to provide access to agricultural

biotechnologies desired by the public sector. This access is being accomplished by

PIPRA through efforts to increase the transparency of the IPR fragmentation that exists

among entities that research and develop agricultural biotechnologies. Acquiring

information pertaining to the state of agricultural biotechnology in the public sector of

developing countries will aid PIPRAs efforts by ensuring that their services provide

maximum benefit. Examples of the type of information about biotechnological activities

within a particular developing country might consist of the degree of commitment to

agricultural biotechnology, the protections being sought for successful biotechnological

research and development (i.e. patents), or actual statistics relating to actual production.

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Many countries would benefit from public sector contributions to agricultural

biotechnology and would thus be of interest to PIPRAs continued objectives. Two such

countries are Malaysia and Thailand. The purpose of this report is to therefore provide

information pertaining to the status of agricultural biotechnology in these countries. All

data provided was obtained in August of 2006. This report addresses the deficiencies that

exist due to limitations on the type of information obtained, and makes suggestions for

further investigations.

MALAYSIA

Malaysia is a Southeast Asian country with a population of over 24 million

people, and a GDP estimated in 2005 to be US$290B.2 Agriculture is a major industry in

Malaysia. The first part of the Malaysia section will briefly discuss the Malaysian patent

system, and the obstacles that must be overcome to obtain data regarding patents that are

granted for agricultural biotechnologies. Secondly, the status of agricultural

biotechnology in Malaysia will be discussed with respect to existing research programs

and crops that are currently available. Thirdly, the state of technological research and

development with respect to private and public expenditure will be discussed in general,

and in somewhat more detail as it relates to the agriculture sector. Lastly, the

commitment to science and technology research will be presented by examining trends in

dedicated scientific researchers in both the public and private sectors. Researchers

devoted to the field of agriculture in general will also be discussed. In the Malaysian

section, notice should be taken of the fact that some figures express monetary amounts in

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RM, the Malaysian currency. However, these numbers have been converted to United

States dollars in the text.

Malaysian Patents

Patents in Malaysia are granted as stipulated by the Patents Act of 1983. Although

foreigners must apply for a patent through a local patent agent, Malaysian citizens may

apply directly to the patent office.3 Malaysia is also a signatory to the Trade Related

Aspects of Intellectual Property Rights (TRIPS), which is an international treaty

implemented by the World Trade Organization (WTO).4 The purpose of TRIPS is to

provide strong intellectual property rights to WTO member states. Among other

requirements, TRIPS requires patent protection for at least 20 years. Furthermore, the

Act allows for importation of patented products that are already in other countries

markets.5 In addition to TRIPS, Malaysia recently acceded to the Patent Cooperation

Treaty (PCT), which automatically designates Malaysia on international patents granted

in offices of PCT member states. However, international patents did not have the

opportunity to designate Malaysia until very recently (August 16, 2006).6

With respect to the patenting of living organisms, Malaysian patent law permits

the patenting of innovations in a manner similar to the United States Patent & Trademark

Office (USPTO), with the exception that plant patents do not exist. Malaysian patent law

provides for the patenting of man-made living micro-organisms, micro-biological

processes and the products of such micro-organisms.7

Relative to most developed nations, Malaysia grants relatively few patents.

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According to a 2004 report produced by the Malaysian Science and Technology

Information Centre (MASTIC),8 1,492 patents were granted in 2002 (Fig. 1). In

comparison, the USPTO granted over 167,000 patents in 2002. Furthermore, in 2002,

only 32 (2.1%) of the patents granted were to Malaysian citizens (Fig. 1). A trend of

increased patent grants is also observed. In 2000, only 405 patents were granted in

Malaysia, although in previous years greater numbers of patents were granted (Fig. 1).

Figure 1. Patent applications and approvals in Malaysia, 1997-2002 (taken from the 2004 MASTIC report on Malaysian Science and Technology Indicators8)

Although the MASTIC report does not provide information as to how many of

these patents might be relevant to the agriculture industry, 334 (22.4%) of the patents

granted in 2002 were associated with the chemistry/metallurgy field of technology.9 This

field of technology is the closest related field to which any type of agricultural

biotechnology innovation might be placed. Additionally, the field of technology

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breakdown does not allow one to determine how many of the patents in each category

were granted to residents or non-residents (Fig. 2).

Figure 2. Number of patents granted in Malaysia by field, 1999-2002 (taken from the 2004 MASTIC report on Malaysian Science and Technology Indicators9).

With respect to the countries of origin of foreigners who are granted patents in

Malaysia, citizens of the United State were granted the greatest number of Malaysian

patents, at 512 (34.3%) for 2002. Citizens in Japan during the same period were granted

437 (29.3%) Malaysian patents.10 Regarding the number of Malaysian citizens that

patent abroad, in 2001, 56 patents were granted by the USPTO to residents of Malaysia.11

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Interestingly, this number is actually higher than the number of Malaysian residents that

were granted Malaysian patents in the same year. Whether the Malaysian citizens that

are patenting in the United States are the same citizens that are patenting in Malaysia is

unknown.

Although the Malaysian government has released data that addresses the number

of patents granted to both residents and non-residents, data on how many of those patents

are granted in agricultural biotechnology has been more difficult to obtain. The

Malaysian Intellectual Property Corporation (MyIPO), which is part of the Malaysian

government, had a web-based search engine for its patent applications. This could have

been a proper avenue to manually examine patent applications to get a better idea of what

types of patents are being granted. However, the information provided was minimal, and

the website has shut down as of the writing of this report. The web-based search engine

no longer exists, as it was only (an ostensibly unsuccessful) trial version. The MyIPO

website suggests visiting the Malaysian patent office to obtain any desired information

regarding Malaysian patents.

Two other avenues might exist to gather information pertaining to patents granted

in Malaysia. One is to search the PCT databases. However, at the time of the preparation

of this report, Malaysia had been a member state for only 2 weeks. As a result, one will

not be able to acquire information regarding trends in agricultural biotechnology patents

granted in Malaysia through the PCT databases for at least another year. The other

possibility might be to purchase a commercially available patent database. Upon further

investigation, although the manufacturers of the databases claim worldwide coverage,

most do not provide data for patent offices other than the largest patent offices in Europe

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and the rest of the developed world. One such database, Micropatent, claimed to possibly

have patent data on Malaysia. However, upon further investigation, it was admitted by a

company representative that the patent information would probably be sporadic and

inconsistent for Malaysia and other countries with less advanced patent offices.

Therefore, it would not be worthwhile to purchase such a database for the information

desired for this report. As a result, the best option for one interested in obtaining specific

data regarding Malaysian patents would be to visit the Malaysian intellectual property

office in Kuala Lumpur.

Agriculture and Biotechnology in Malaysia

According to the USDAs Global Agriculture Information Network (GAIN)

report, Malaysia is currently experimenting with multiple genetically modified crops.

Such projects include rice to resist the tungro virus, papaya to resist ring-spot virus

infection, papayas and bananas to have an increased shelf life, pineapples to resist black

heart, chili to resist various viruses, and genetically engineered palm oil that would

increase its levels of oleate, stearate, and vitamins A and E. Malaysia is one of the

worlds top producers of palm oil. In addition, Malaysia is currently conducting confined

field trials for delayed-ripening papaya, and experimenting with bio-diesels and bio-

plastics. To what degree each respective project is occurring in the public or private

sector is not provided by the data gathered for this report. Despite these research projects

that are non-commercially developing these crops, Malaysia has not yet commercially

produced a bio-engineered crop.12

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With respect to the importation of transgenically produced crops, Malaysia

currently has no restrictions. Although transgenically modified corn has not been

restricted, its importation has not yet been officially approved. Roundup Ready Soybeans

have been officially approved.13

Regarding biotechnology policy in Malaysia, a Biosafety Act will soon be

implemented in which all products containing more than 3% transgenically modified

content will be required to be labeled. The USDA is still of the opinion that Malaysia

further needs to adopt unified, transparent and science-based legislation and regulations

that will allow the free trade and commercialization of biotech products, despite certain

recent changes.15 In April 2005, the prime minister of Malaysia created a National

Biotechnology Policy aimed in part at advancing Malaysias role in the world of

agricultural biotechnology. The new policy will provide increased funding for R&D,

training, and patent applications. The Malaysian government is also providing 100% tax

relief for 10 years for corporations that invest in Malaysian biotechnology.14

Research and Development in Malaysia

In this section, the R&D activities that occur in Malaysia will be examined. The

first part will report on innovation in Malaysia. Innovation reflects upon what is actually

produced in a given country. The next part of this section will analyze the expenditure on

R&D activities in both the private and public sector. Additionally, R&D expenditure in

the agricultural and biotechnological fields of research will be examined in somewhat

more detail.

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The information pertaining to innovation in Malaysia was taken from a report

published by MASTIC in 2003, which reports on innovation activities during 2000-2001.

The data was collected from 4,000 surveys sent to Malaysian businesses. Only 749

surveys were returned, and of those, only 263 companies indicated that innovating

activities were carried out at their place of business. Of the innovating companies

profiled, only one-third are subsidiaries of other companies, and only 28 out of 88 of the

companies that are subsidiaries have parent companies with foreign headquarters.16

Whether the companies that failed to return the questionnaires were companies that are

considered innovating companies is not known. This incompleteness must be taken into

consideration when analyzing the state of innovation in Malaysia.

The manufacturing sector accounts for roughly a third of Malaysias GDP.17

Although it is impossible to gather from the survey how many innovating companies

produce agricultural biotechnologies, two industries exist that could potentially be

creating technologies relating to agriculture: food products and beverages, and chemicals

and chemical products. Food products and beverages are produced by 13% of the

surveyed Malaysian companies, and chemicals and chemical products were produced by

5% of the companies surveyed (Fig. 3).

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Figure 3. Innovating Malaysian companies by industry, 2000-2001 (taken from the 2003 MASTIC report on innovation in Malaysia18).

Innovating companies were also asked to provide information regarding methods

used to gather information used for R&D activities. Interestingly, patent disclosure was

the least likely medium to be used to gather information regarding innovation. In fact,

132 (52%) of surveyed companies did not use patent disclosures at all as a source of

information (Fig. 4). Whether this is due to characteristics of the Malaysian patent

system, such as its perceived effectiveness, is difficult to determine.

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Figure 4. Sources of information for innovating Malaysian companies (taken from the 2003 MASTIC report on innovation19).

Documented R&D expenditure activities were also surveyed. This data was

published in2004 survey by MASTIC on data collected from a 2002 survey. 2 public

sectors were surveyed: governmental agencies and research institutions (GRI) and

institutes of higher learning (IHL). 39 out of 41 GRI organizations responded, and 17 out

of 18 IHL organizations responded. Only 461 out of 2,312 companies from the private

sector responded to the survey. Of these, only 198 had research and development

activities.20

The purpose of the R&D survey was to assess trends and developments in R&D

between the private and public sector. A total of 254 responding organizations were

surveyed, totaling 6,372 projects. 1,716 of the projects were from private sector

companies. Although only 17 of the organizations were IHL, this group had the largest

number of projects at 3,537. In addition, GRI were responsible for 1,119 of the ongoing

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projects.21 In 2002, Malaysia had a gross expenditure on R&D (GERD) of over

US$600M, which is up from US$400M in 2000, and part of an increasing trend (RD).

About US$25M, or 3.9% of the GERD in 2002 was in agricultural sciences (Fig. 5).

Figure 5. Proportion of gross expenditure by field of research (taken from the 2004 MASTIC national survey on R&D 22).

With respect to other countries in the region, Malaysia had relatively modest

R&D expenditures in comparison to Singapore, which expended just under US$2B in

2002. However, Malaysia expended more in R&D than Thailand, Indonesia or the

Philippines, which expended US$300M, US$55M, US$48M, respectively.23 However,

the exact percentage of these countries R&D expenditure relative to their GDP would

require further calculations.

Total R&D expenditure in the private sector has always been more than that

observed in the public sector. Although a trend has been observed in which public sector

expenditure has increased in percentage with respect to the private sector, this trend

reversed in 2002. In 1996, the public sector contributed 27.1% of the total R&D

expenditure. This percentage increased to 33.8% in 1998 and to 42.1% in 2000, but fell

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to 34.7% in 2002 (Fig. 6). This decrease however, was attributed to a 66% increase in

private sector expenditure from 2000 to 2002 (Fig 6).

F Gross expenditure between public and private sector on R&D (taken from the 2004 MASTIC

Both the agricultural and biological sciences exhibit greater expenditure

public rather than the private sector. This contrasts with overall gross expenditure as

noted in figure 6. These data may reflect a governmental interest in furthering

Malaysias biotechnology industry. In 2002, the public sector expended US$17M i

agricultural sciences field, whereas the private sector expended US$7M. In the b

sciences field, the public sector expended US$12.5M, with the private sector only

showing an expenditure of US$1M (Fig. 7). However, both the agricultural and

biological sciences have seen overall decreases in expenditure in the private and public

sectors. This is noteworthy given Malaysias ostensible interest in promoting their

biotechnology industry. In the agricultural sciences field, public sector expenditure saw

significant decrease from US$26M to around US$17M, although no similar decrease was

observed in the private sector. In the biological sciences, the public sector saw a m

igure 6.national survey on R&D24).

in the

n the

iological

a

ore

Page 15 of 36

modest decrease in expenditure, from US$14M to US$12.5M, whereas the private sector

saw more than a 50% decrease in expenditure, from US$2.5M to US$1M (Fig. 7).

F Major R&D expenditure between public and private sector by field of research (taken from t

The 2004 MASTIC report also examined expenditure with respect to field of

research for the two public sectors. The GRI public sector expended US$12.5M (9.7% of

its total expenditure on agricultural sciences), and US$9M (7.2%) on biotechnology (Fig.

8A). The IHL public sector expended US$9M (10.0%) on biological sciences (Fig. 8B).

Unlike the GRI public sector, the IHL public sector does not include ag

igure 7. he 2004 MASTIC national survey on R&D25).

ricultural sciences

s part of a field of research. Presumably, expenditure on the agricultural sciences in the

L sector would be included under the biological sciences category.

A

a

IH

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B

Figure 8. Proportion of expenditure by field of research in both the A) GRI and B) IHL public sectors (taken from the 2004 MASTIC national survey on R&D26).

Human Resources for Science and Technology in Malaysia

This section of the report describes Malaysias commitment to science and

technology in general, and to training and retaining research personnel. The data

presented in this section have been compiled from MASTICs 2002 survey of R&D, the

2000-01 National Survey of Innovation, and from institutional reports from relevant

governmental agencies.27

The percentage of researchers in Malaysia is increasing relative to its population.

In 1998, Malaysia had 2.8 researchers per 10,000 citizens, 6.4 in 2000, and 7.3 in 2002.28

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A researcher is defined as anyone who participates in research activities full time, and has

either a Ph.D., masters, or bachelors degree. Technicians and other R&D personnel are

not considered researchers. In 1998, the total number of researchers was 12,127 and in

2002, the number increased to 24,937.29 In considering both researchers and technicians,

the ratio Malaysia exhibited in comparison to the general population was 15:10,000. In

comparison to other developed nations in the region, Malaysia has a relatively low ratio

of R&D personnel. South Korea and Singapore, for example, have ratios of science and

technology personnel to the general population of 60:10,000 and 83:10,000,

respectively.30

With respect to agriculture, the public sector of Malaysia has a higher headcount

than the private sector. For all sectors in 2002, 1,615 of the 12,127 researchers (13.3%)

were involved in agricultural research (Fig. 9). In examining the breakdown with respect

to sector, 895 of the 1,615 (55.4%) agricultural researchers were in the GRI public sector;

581 of the 1,615 (36.0%) were IHL; and only 139 of the 1,615 (8.6%) were private sector

researchers (Fig. 10). It should be noted that agricultural researchers may not necessarily

be involved in agricultural biotechnology research. The field of research breakdown by

sector also provides data for the number of researchers in the biological sciences. The

MASTIC report does not specify whether these researchers are taken from the applied

sciences, or the medical & health sciences category when examining the breakdown of

total researchers (public and private) by field of research (see Fig. 9).

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Figure 9. Number of researchers by field of research in Malaysia in 2002 (taken from the 2004 MASTIC report on Malaysian Science and Technology Indicators31).

Figure 10. Number of researchers by sector and selected fields (taken from the 2004 MASTIC report on Malaysian Science and Technology Indicators32).

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Most of the researchers in Malaysia today are Malaysian citizens. In 2002, the

ratio of Malaysian researchers to foreign researchers was 13.0:1, and was 12.7:1 in

2000.33 The MASTIC science and technology indicators report suggests this large ratio is

consistent with a government policy of utilizing local human resources. Whether other

factors, such as a research environment that may not be attractive to foreign scientists

also contributes to the low number of foreign scientists, is unknown.

Conclusion for Malaysia

Malaysia, like many other developing countries, relies on agriculture, and hopes

to increase its use of biotechnology to increase agricultural output. A significant

proportion of this report has been extracted from various studies provided by the

Malaysian government. One must be aware of the fact that much of the data was

acquired four to six years ago. Further, when analyzing trends many potential

respondents did not make the effort to return their surveys. Therefore, the possibility

exists that observed trends may simply be a result of temporary situations or insufficient

data that could alter any particular predictive landscape.

Not many patents are granted in Malaysia, and only a small percentage are

granted to Malaysian citizens. Additionally, over half of innovating businesses in

Malaysia do not utilize patent disclosures as a source of information. Possible

explanations are only intelligent suppositions. Some reasons could include either

unfamiliarity with the patent system, or local culture and custom. Further possibilities

that might explain the lack of reliance on the patent system could be a lack of confidence

in the enforceability of a patent, or its perceived effectiveness when balanced against the

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cost of patenting. Also, with the accession to the PCT and TRIPS, some Malaysian

citizens may perceive the patent system as an effect of globalization that only benefits

wealthier developed countries. Although many possibilities could explain this

observation, Malaysian government and industry seems to be interested in strengthening

the patent system. Recent policy decisions that substantiate this notion are Malaysias

accession to both TRIPS and the PCT. As the accession to the PCT will undoubtedly

increase the protection of innovation in Malaysia, it will be interesting to observe what

effect this will have on Malaysias success in providing agricultural biotechnologies to

the world market in the future.

It is unknown how many of the patents granted in Malaysia are for innovations

related to the agricultural biotechnology field. The only way to truly obtain information

pertaining to Malaysian patents as they relate to agricultural biotechnology will probably

be to either visit the Malaysian patent office, or start a correspondence with a Malaysian

official within their patent office. Furthermore, whether evaluating patents, innovative

capabilities, or R&D expenditure, one must take into consideration the fact that each field

of research may be differently dedicated to agricultural biotechnology. For example,

agriculture or biological sciences are used as fields of research categories in the

MASTIC reports. However, it is not known definitively which categories the innovations

or researchers that enable agricultural biotechnology might belong to.

Malaysia appears to be increasing its percentage expenditure on agricultural

science in the public sector in comparison to the private sector. What is interesting is that

expenditure in this field of research was showing a decreasing trend around the first part

of this decade. This is particularly noteworthy given the 2005 National Biotechnology

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Policy that aims to advance Malaysias role in agricultural biotechnology by investing

over US$3.7B in this area. Because the MASTIC reports were conducted just prior to the

introduction of this policy, it is possibile that these trends are reversing. Another

interesting observation relating to Malaysias desire to increase its prominence in

biotechnology is its reliance on local brainpower. Whether the 2005 biotechnology

policy addresses this issue is unknown. If Malaysia desires to implement these policies,

it must retain foreign researchers from countries with more developed technologies.

Although Malaysia has implemented a program that provides incentives to encourage

foreign and Malaysian scientists residing overseas to work in Malaysia, from 2001 to

2004 less than one half of one percent of Malaysian scientists working abroad returned.34

For these new policies to be effective, Malaysia must provide greater incentives to

encourage foreign and Malaysian scientists working abroad to return.

THAILAND

Thailand is a Southeast Asian country with a population of over 64 million

people, and a GDP of US$560B.35 Agriculture is a major industry in Thailand. In fact,

Thailand is the largest exporter of rice in the world. In 2001, over 7 million tons of rice

were exported.36 Thailand aims to become the kitchen of the world, or one of the

largest exporters of agricultural goods. Because of this, Thailand is very interested in the

potential of agricultural biotechnology. However, Thailands relationship with the ideals

of agricultural biotechnology have not always been as favourable. In 2001, though

Thailand had not signed onto the Convention of Biological Diversity37, Thailands

cabinet passed a resolution that prohibited the use of agricultural biotechnology with an

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exception for purposes of research. This moratorium resulted from the lobbying by those

opposed to agriculture biotechnology. However the Thai government overturned this

moratorium in 2004.38,39 This action wasnt necessarily to promote the technology, but to

allow for the commercialization of crops that have been genetically engineered.40

The Thailand section of this report will first attempt to examine the current state

of the Thai patent system. This section will also discuss improvements that have been

suggested to modernize Thailands patent system, with particular focus on intellectual

property relating to agricultural biotechnology. Next, the current environment of

agricultural biotechnology in Thailand will be discussed. Thirdly, the section will

address the current and desired state of research and development in Thailand and lastly,

the current and proposed number of personnel dedicated to agricultural biotechnology in

Thailand will be discussed.

Thai Patents

Currently, Thailand is not a signatory to any international convention for

reciprocal protection of patents, although bilateral agreements with other countries do

exist. Thai patent law basically provides two types of patents: inventions and

designs. The number of patents granted in Thailand is comparable to that of Malaysia,

although a greater percentage of the patents granted are to Thai citizens. For example, in

2004, 45% of patents granted were to Thai nationals. However, 2004 was an unusual

year in that the number of granted patents decreased in comparison to the previous two

years (Fig. 11).

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NUMBER OF GRANTED PATENTS 1999 2000 2001 2002 2003 2004

THAI 110 164 418 635 786 864 FOREIGN 488 580 1,098 1,831 1,795 1071

TOTAL 598 744 1,516 2,466 2,581 1,935

Fig. 11. Number of patents granted, both invention and design, in Thailand (from S&I International Bangkok Office41).

If one examines patents granted for only for inventions, and not designs, the number of

patents granted to Thai nationals is considerably smaller, as low as 8%. The two

countries that have the most inventors filing for Thai patents are Japan and the United

States (Fig. 12).

Figure 12. Number of invention patents granted by country in Thailand (from S&I International Bangkok Office41).

With respect to living organisms, microbes and any components thereof which

exist naturally; animal, plant and extracted substances from animals or plants, are not

patentable. This prohibition is broad, and presumably includes life forms that are not

naturally occurring.42 These prohibitions will likely decrease agricultural biotechnology

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development in Thailand. As will be discussed later in this report, Thailand desires to

create a stronger biotechnology industry and strengthen its infrastructure to accomplish

these goals. According to a 2004 strategy report prepared by the International Intellectual

Property Institute (IIPI), Thailand would need to implement many adjustments to its

current patent system in order to achieve its desired advances in biotechnology.

The IIPI recommends that Thailand change its patent laws to allow non-naturally

occurring life forms to be patentable subject matter.43 The IIPI argues that non-naturally

occurring life forms are staples of modern biotechnology, and without this reform, there

will be little incentive to invest in Thailands biotechnology efforts. Further, it

recommends that Thailand provide patent property rights to universities and national

research centers, and set up technology transfer offices, similar to the policy achieved by

the Bayh-Dole act in the United States.44 Furthermore, the IIPI suggests that Thailand

increase its intellectual property education programs, and encourage the development of

an intellectual property bar that will provide attorneys skilled in IP-related advice.45

Finally, the IIPI recommends that Thailand enhance intellectual property-related

enforcement. This would include providing additional training to Thai judges that

focuses on patent and trade secret adjudication, and to expand the use of other forms of

intellectual property dispute resolution.46

Thailands patent system is less favourable to agricultural biotechnology

development than Malaysias. Thailand needs to implement many changes to implement

the advances the country desires. Discovering existing Thai agricultural biotechnology

patents is subject to the same problems a searching for patents in the Malaysia. Unlike

Malaysia, the Thai patent office does have a searchable patent database.47 However, the

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database is in Thai. As a result, in order to obtain this information, one would probably

be required to visit the Thai patent officewith a translator. [quick question: did you

check US patents granted to Thai residents? Was any of this info easily available?]

Agriculture and Biotechnology in Thailand

Thailand is currently struggling with strategies regarding agricultural

biotechnology policy. Thailand desires to continue its prominence as a world leader in

crop export, and realizes that biotechnology will be important in accomplishing this goal.

However, Thailand does not allow the importation or production of transgenic crops for

commercial purposes except for imports or sales of soybeans and corn. This failure to

deregulate is likely a result of fears that Thailand will lose export sales to EU nations if

they produce crops containing GMOs.48 Similar trends in other developing countries due

to fears of export restrictions have been well documented.49 A further criticism of

Thailands failure to implement biotechnology policy is the fact that Thailand has not

created any national biosafety laws or framework. This has been reported by many anti-

GMO organizations, and is believed to be in part responsible for the three year

moratorium that existed against transgenically produced crops. However, biosafety-

related agencies and institutions have been set up, and Thailand is now establishing a

National Biosafety Framework.50

Despite the fact that Thailand does not allow the production of transgenically

produced crops other than corn and soybean, agricultural crop production attracts the

most research and development interest in Thailand.51 As Thailand is the worlds leader

in rice exports, much research focuses on rice biotechnology. Current rice programs

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include resistance to blast disease and the sequencing of the rice genome.52,53 Other crop

programs include resistance to the tomato bacterial wilt, the papaya ring spot virus, the

chili vein-banding mottle virus, and the cowpea aphid-borne mosaic virus that affects the

yard longbean. Additionally, enabling technologies are being researched in Thai labs,

including plant transformation, DNA fingerprinting and molecular diagnosis of plant

disease. A result of this has been the transformation of a local cotton variety using Bt

genes.54 As mentioned previously, most production of transgenic crops is not allowed in

Thailand, and as a result, most transgenically produced crops are still in the

laboratory.55,56 In addition to Thailands crop programs, efforts are also underway to

produce bio-insecticides and herbicides.57,58

Only a few transgenically produced crops have actually undergone field testing,

most likely due to Thailands weak infrastructure for most operational steps in field

testing procedures. Furthermore, all field testing that has occurred has been with foreign

produced crops. These crops include the Flavr Savr tomato (produced by Calgene), Bt

cotton produced by Monsanto, and Bt corn made by Novartis.59,60

Research and Development in Thailand

In Thailand, most funding for research is provided by the government.61 With

respect to biotechnology, 80% of R&D funding comes from the public sector. The Thai

government hopes to increase private funding, both from local and foreign investors, to

an amount equal to the contributions of the public sector. In 2001, total R&D

expenditures made available to Thai universities was approximately US$36M. However,

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much of the research in Thailand is applied, focusing on current issues. As a result of the

lack of basic research, Thailand lacks sufficient R&D personnel to carry out a cutting-

edge biotechnology industry.62 Of the 126,661 graduate of Thai universities in 2000,

only 172 earned Ph.D.s for any discipline.63

In 2004, Thailands National Center for Genetic Engineering and Biotechnology

published Thailands National Biotechnology Policy Framework for 2004-2009. The

purpose of that report was to provide a roadmap for the advancement of biotechnology in

Thailand. Three areas of focus addressed in the framework relate to agricultural

biotechnology: investment, crop export and biotechnology personnel.

By 2009, Thailand hopes to have R&D investment reach US$125M, with the

creation of over 100 new biotechnology companies and an increase of over 200% in

biotechnology-related patents. To do this, Thailand hopes to increase its biotechnology

infrastructure, set forth clear policy on contentious issues, and create a favorable

environment for private investment that would lead to the creation of biotechnology

companies with listings on the Stock Exchange of Thailand.64

Thailand also wishes to be known as the kitchen of the world, as a world leader

in exported crops. Currently, Thailand is ranked twelfth in the export of food products.

Thailand wishes to triple its export value to US$30B, which would place it among the top

5 food exporting countries in the world. To accomplish these goals, Thailand wishes to

promote agricultural biotechnology for food production and food safety diagnosis.65

Human Resources for Science and Technology in Thailand

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Thailand desires to increase its number of biotechnology scientists. According to

Thailands National Biotechnology Policy Framework, by 2009, Thailand aims to have

over 5,000 dedicated researchers that focus on biotechnology in both the public and

private sector, with over 10,000 students at the bachelor, master and doctoral level

focusing on degrees that relate to biotechnology. This would be accomplished in part by

providing a directory of Thailands biotechnology researchers, creating a research

environment that is attractive to biotechnology scientists from both Thailand and foreign

countries, and to expedite the development of biotechnologies in terms of both

infrastructure and human resources.66

Conclusion for Thailand

As with Malaysia, obtaining information on Thai patents can be difficult.

Relatively few patents are granted in Thailand, and the majority of patents are granted to

foreign nationals. The remaining patents granted each year to Thai citizens are likely to

contain few, if any, patents granted to innovators of agricultural biotechnology. In order

to confirm these predictions however, one would likely need to visit the Thai patent

office.

Similar to Malaysia, Thailand desires to increase private funding for

biotechnology. Currently, most agricultural biotechnology expenditure is provided by the

Thai government. However, a question exists as to whether or not this will aid the

humanitarian efforts of the public sector. Why does Thailand wish to promote private

investment? Is it solely for the purposes of boosting its economy through increases in

export production, or does the Thai government also have a humanitarian interest in

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increasing the nutritional requirements of its population? As far as can be gathered by its

framework report, Thailands interest in increasing its biotechnology productivity seems

to be mostly economically driven. Whether or not this could be to the advantage or

disadvantage of local public sector biotechnology firms can only be speculated upon.

Although Thailands interest in the progression of biotechnology may seem at

first glance to only benefit an economically driven agenda, the public sector may likewise

benefit. For example, a recent BIOTEC report predicts that Thailands biotechnology

success depends on the ability of Thai scientists to develop their own enabling

technologies that provide the operational freedom to work around the intellectual

property rights granted by other countries.67 If a technology is discovered locally, and

found to promote Thailands private sector biotechnology industry, then the possibility

exists that Thailands public sector may also utilize that same technology without

concerns of foreign patent infringement. This ultimately depends on how Thailands

intellectual property laws develop to meet its technological demand.

Lastly, Thailand has experienced unusually active GMO opposition. Anti-GMO

groups are thought to have been largely responsible for the moratorium on genetically

modified crops during the 2001-2004 time period. In an effort to meet its biotechnology

goals while balancing the interests of anti-GMO groups, Thailand has produced a

biotechnology policy framework. This framework focuses on furthering its

biotechnology agenda and provides suggestions on creating policy that would closely

monitor the possible ill effects of biotechnology that are of concern to biotechnology

opponents. Some scientists and biotechnology advocates are apprehensive of the

framework68, suggesting that the framework is a superficial effort that will be difficult to

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achieve unless Thailand can answer the concerns of anti-biotechnology groups and other

concerns about export reduction.

SUMMARY

Malaysia and Thailand are both developing countries that are interested in

promoting agricultural biotechnology. Although both countries have patent offices that

grant very few patents to their own citizens, Malaysia seems to be taking the steps

necessary to develop a patent system more harmonized with that of more developed

nations, including accession to the PCT and TRIPS. Thailand will probably be required

to modernize it patent laws if it wishes to modernize its biotechnological industry. With

respect to current agricultural biotechnology, Thailand has more restrictions on GMO

crops then does Malaysia. Over-restrictive regulations could potentially create additional

barriers to biotechnological success. Whether these restrictions are appropriate is

probably difficult to determine given how relatively recent the field of biotechnology is.

Because of potential deficiencies in the data reported, it is difficult to asses which

country is providing a greater expenditure on biotechnology. However, both countries

have explicitly stated desires to increase their expenditure on biotechnology. Thailand has

expressed interest in creating an environment more conducive to biotechnology in an

effort to encourage a greater expenditure on biotechnology within the private sector.

Similar to Thailand, Malaysian fields that relate to agricultural biotechnology are

supported more by the public sector. Whether private sector expenditure in this field will

increase with respect to the public sector is not known. Regarding the number of

dedicated researchers in the field of agricultural biotechnology, a comparison between

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Malaysia and Thailand will be difficult, as the data analyzed for this report only suggests

Thailands projected, and not actual, number of scientists that will be dedicated to

agricultural biotechnology. Agricultural biotechnology is a rapidly advancing field of

interest to both Malaysia and Thailand. The next 10 years should be an interesting period

to observe how successful both Malaysia and Thailand will be relative to their interests

and current biotechnological infrastructure.

_________________________________

1 Prepared by Gregory C. Ellis, Ph.D., University of Washington School of Law, Seattle, Washington, J.D. class of 2008.

2 CIA Factbook, Section on Malaysia, available at https://www.cia.gov/cia/publications/factbook/geos/my.html (last visited Aug. 23, 2006).

3 Malaysian Industrial Development Authority, Section on Intellectual Property Protection, available at http://www.mida.gov.my/beta/view.php?cat=3&scat=636 (last visited Aug. 23, 2006).

4 Id.

5 World Trade Organization, Section on TRIPS, available at http://www.wto.org/english/tratop_e/trips_e/trips_e.htm (last visited Aug. 23, 2006).

6 World Intellectual Property Organization, Section on News & Events, Malaysia and El Salvador accede to WIPOs patent cooperation treaty, available at http://www.wipo.int/edocs/prdocs/en/2006/wipo_upd_2006_276.html (last visited Aug. 23, 2006). 7 Intellectual Property Corporation of Malaysia, Section on Patents, available at http://www.myipo.gov.my/index.php?option=content&task=view&id=2 (last visited Aug. 23, 2006). 8 Malaysian Science and Technology Information Centre (MASTIC), Malaysian Science and Technology Indicators 2004 report, chapter 5, 73-75 (2004). 9 See id. at 75.

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10 See id. at 77. 11 See id. at 79. 12 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Malaysia at 4 (2005). 13 Id. 14 Malaysia Biotechnology Corporation, Section on the National Biotechnology Policy, An Overview of Malaysias National Biotechnology Policy, available at http://www.biotechcorp.com.my/biotechinmalaysia/nationalpolicy.htm (last visited Aug. 24, 2006). 15 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Malaysia at 1 (2005). 16 Malaysian Science and Technology Information Centre (MASTIC), National Survey of Innovation, 2000-2001 Report, executive summary (2003). 17 Malaysian Science and Technology Information Centre (MASTIC), National Survey of Innovation, 2000-2001 Report, chapter 3 at 1 (2003). 18 Malaysian Science and Technology Information Centre (MASTIC), National Survey of Innovation, 2000-2001 Report, chapter 4 at 13 (2003). 19 Id. at 22. 20 Malaysian Science and Technology Information Centre (MASTIC), National Survey of Research and Devlopment 2004 Report at 12 (2004). 21 Id. at 10. 22 Id. at 17. 23 Id. at 42. 24 Id. at 21. 25 Id. at 22. 26 Id. at 27, 32. 27 Malaysian Science and Technology Information Centre (MASTIC), Malaysian Science and Technology Indicators 2004 report, chapter 1 at3 (2004).

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28 Malaysian Science and Technology Information Centre (MASTIC), Malaysian Science and Technology Indicators 2004 report, chapter 4 at 34 (2004). 29 Id. at 35. 30 Id. at 57. 31 Id. at 40. 32 Id. at 41. 33 Id. at 42. 34 Id. at 57. 35 CIA Factbook, Section on Thailand, available at https://www.cia.gov/cia/publications/factbook/geos/th.html (last visited Aug. 30, 2006). 36 Morakot Tanticharoen, (Thai) National Center for Genetic Engineering and Biotechnology (BIOTEC), Research and Development on Agricultural Biotechnology in Thailand (2004). 37 Maorkot Tanticharoen, Rudd Valyasevi, Jade Donavanik and Thippayawan Thanapaisal, (Thai) National Center for Genetic Engineering and Biotechnology (BIOTEC), Recent Major Developments of Biotechnology in Thailand (2004). 38 Greenpeace, Section on Press Releases, Thailand taking the disastrous path to GMOs, available at http://www.greenpeace.org/international/press/releases/thailand-taking-the-disastrous (last visited Sept. 6, 2006). 39 Monsanto, Section on News, Thailand to reverse three-year moratorium on cultivation of genetically modified crops, available at http://www.monsanto.co.uk/news/ukshowlib.phtml?uid=8071 (last visited Sept. 6, 2006). 40 Id. 41 S&I International Bangkok Office, Section on Thai patent statistics, available at www.s-i-asia.com/patents.htm (last visited Sept. 1, 2006). 42 Michael P. Ryan and Eric Garduno, International Intellectual Property Institute, An intellectual property system in Thailand bor bio-innovation and commercialization: A national strategy for business, government, and the technology community, 2-3 (2004). 43 Id. 44 Id., 4-7.

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45 Id. at 9. 46 Id., 13-14. 47 Available at http://www1.ipic.moc.go.th (last visited Sept. 6, 2006). 48 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Thailand at 4 (2006). 49 see Neil D. Hamilton, Forced Feeding: New Legal Issues in the Biotechnology Policy Debate, 17 Wash. U. J.L. & Pol'y 37, 41 (2005). 50 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Thailand at 3 (2006).

51 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Thailand at 5 (2006). 52 Agriculture and Agri-Food Canada, Section on Southeast Asia Market Information, The Biotechnology Sector in Thailand, July 2002, available at http://www.ats.agr.gc.ca/asean/e3337.htm (last visited Sept. 6, 2006). 53 Morakot Tanticharoen, (Thai) National Center for Genetic Engineering and Biotechnology (BIOTEC), Research and Development on Agricultural Biotechnology in Thailand (2004). 54 Agriculture and Agri-Food Canada, Section on Southeast Asia Market Information, The Biotechnology Sector in Thailand, July 2002, available at http://www.ats.agr.gc.ca/asean/e3337.htm (last visited Sept. 6, 2006). 55 Id. 56 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Thailand at 4 (2006). 57 Morakot Tanticharoen, (Thai) National Center for Genetic Engineering and Biotechnology (BIOTEC), Research and Development on Agricultural Biotechnology in Thailand (2004). 58 Agriculture and Agri-Food Canada, Section on Southeast Asia Market Information, The Biotechnology Sector in Thailand, July 2002, available at http://www.ats.agr.gc.ca/asean/e3337.htm (last visited Sept. 6, 2006). 59 Id.

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60 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Thailand at 4 (2006). 61 Agriculture and Agri-Food Canada, Section on Southeast Asia Market Information, The Biotechnology Sector in Thailand, July 2002, available at http://www.ats.agr.gc.ca/asean/e3337.htm (last visited Sept. 6, 2006). 62 Id. 63 Id.

64 National Center for Genetic Engineering and Biotechnology, Thailands National Biotechnology Policy Framework 2004-2009, 4-5 (2005). 65 Id., 7-8. 66 Id., 19-21. 67 Maorkot Tanticharoen, Rudd Valyasevi, Jade Donavanik and Thippayawan Thanapaisal, (Thai) National Center for Genetic Engineering and Biotechnology (BIOTEC), Recent Major Developments of Biotechnology in Thailand, 6-8 (2004). 68 USDA Foreign Agriculture Service Global Agriculture Information Network (GAIN) 2005 Report, Thailand at 3 (2006).

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