In a battle of natural resource grabbing, what should the state authorities do in the case of the Japanese patent over kratom?

Concerning the registration of patents for Kratom, Thai officials have a number of duties and responsibilities that they must carry out to enforce the law. The departments most directly concerned are the Department of Intellectual Property (DIP), the Department of Agriculture (DoA), the Department for the Development of Thai Traditional and Alternative Medicine (DTAM) and the Ministry of Public Health. The main agency involved is the Department of Intellectual Property, which must urgently submit a challenge to the registration of patents over Kratom, which were applied for by a commercial body of a Japanese University. This is because, after the application has been considered by the World Intellectual Property Organisation’s screening organization, the application will be forwarded to member countries to consider individually whether or not to accept the patent.

BIOTHAI has learned that many of the countries which have made requests are Parties to the Convention on Biological Diversity (CBD), which are obliged to operate according to the Nagoya Protocol on Access, Agreements and Fair and Equitable Benefits Sharing*.

A source from the Department told the media that the government has already admitted that the Japanese have submitted an application according to the Patent Cooperation Treaty (PCT) to register patents on Kratom. However, it was also stated that the period for challenge had passed, which is not true. In fact, there is still another step to go through whereby each country in which a patent application is made must examine the papers and consider whether or not to accept the application. The longer the DIP delays before registering a preliminary challenge in each country, the greater the damage to our nation.

An important oversight by the Department is their failure to amend the Thai Patent law to make it obligatory to indicate the origin of the biological resources and local wisdom which were developed and submitted for patent. Other countries, such as Switzerland, have amended their laws to comply with the CBD, even though their own pharmaceutical companies will have to pay out (or lose benefits) as a result. Academic networks working on biological resources have been consistent in their demand for amendments to the law over the last 20 years. However, the responsible officers continue to ignore them. Officers working on intellectual property in Thailand are strongly influenced by the American patent regime, even though the US is the only country in the world that is not Party to the Convention on Biological Diversity.

The Department of Agriculture is another agency which should take a pro-active role in this case. Under the legal provisions on patents over plant varieties, Kratom is a protected species under the Plant Varieties Protection Act 1999. Researchers that make use of wild or other indigenous plant varieties, etc, must request permission and should make an agreement to share benefits with the Thai state. The Department for the Development of Thai Traditional and Alternative Medicine should also support and push the government, in particular the DIP, not only to refuse the patent registration in Thailand, but also to submit challenges to registration in other countries too. The Department should gather medicinal recipes and preparations of traditional doctors, that shows that the herb’s properties related to the suppression of pain was already known to traditional doctors, for which there is ample evidence in Thailand.

Challenges to the patent should be issued on the following bases:

- Challenges under the Patent Act: the broad set of derivatives from Mitragynine which are at the heart of the patent application already exist in the natural extracts from the kratom plant and in other plants. The therapeutic qualities of kratom in relieving pain are already known to practitioners of Thai traditional medicine. Therefore, the Japanese registration of patents do not meet the conditions of the Patent law itself which requires a higher standard of novelty and innovation.

- Challenges under the international CBD rules: Thailand, Japan and the countries in which Japan is currently requesting registration, are all Parties to the CBD. Such a challenge should also refer to the Plant Varieties Protection Act, as this is the Thai law that puts into effect the main principles of the CBD.

Finally, it is also proposed that the Ministry of Public Health, which is the agency responsible for the implementation of  Thailand's Narcotics Act, should remove kratom from the list of prohibited addictive substances. Currently, people found in possession of kratom can be punished by imprisonment or the payment of fines. This obstructs making use of the herb, which is a subject we will return to in a later discussion.   

* Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity

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