In recent years, the global conversation about Patents has shifted from who invented first to who controls the standard. Behind the arrival of 5G on our phones, Wi-Fi in every public space, and USB-C as a universal port, lies a term that increasingly dominates Intellectual Property discussions: Standard Essential Patents (SEP). This is no longer merely about exclusive rights, but about access to technology and the governance of the global digital industry.
Indonesia may not yet be the main arena for SEP disputes, but several cases—such as Nokia’s Patent disputes in the Commercial Court—signal that this issue is no longer confined to Europe or the United States. When a company’s Patent has been adopted as part of a global technical standard, the question becomes more complex: how should its license be opened? Should there be a “public interest” limitation under FRAND (Fair, Reasonable, and Non-Discriminatory) terms? Unlike disputes in the pharmaceutical or life sciences sectors that often revolve around novelty, indication, or public domain, SEP issues introduce new dimensions: standardization, access, and interoperability. A Patent does not only protect technology—it can determine who may enter the market, and under what conditions.
Indonesia’s First SEP-Related Case
The first SEP-related case in Indonesia emerged in 2015 between PT Polarchem, PT Garuda Tasco International, PT Star Metal Ware Industry, and PT Golden Agin against the holder of Patent IDS0001281.
Patent IDS0001281 was registered as a Utility Model, describing the technical specifications of a sprayer, filed on 31 May 2012. The Utility Model closely resembled an Indonesian National Standard (SNI) established in 2018, which governed the criteria and testing methods for electric backpack sprayers.
The Patent Holder objected to the enactment of SNI 8485:2018, arguing that it infringed on the Patent and refused to license the technology—an action that clearly violated the FRAND principle for inventions adopted as national standards.
Initially, the Patent Holder won before the Central Jakarta Commercial Court (Decision No. 75/Pdt.Sus-Paten/2015/PN.Niaga.Jkt.Pst, 30 June 2016). However, upon judicial review, the Supreme Court (Decision No. 147 PK/Pdt.Sus-HKI/2018) determined that Patent IDS0001281 lacked technical novelty, ruling that the Utility Model was not new, and subject to cancellation.
The Nokia SEP Cases
Another major development involved four cases between Nokia Technologies Oy and mobile phone assemblers or distributors in Indonesia. These cases demonstrated consistent SEP argumentation patterns.
Nokia mapped its telecommunications Patent claims to specific 3GPP Technical Specifications adopted under Indonesia’s standardization framework.
- The first group involved 3G/UMTS Patents related to HSDPA 64QAM, covering efficient data packaging methods for faster transmission. Nokia referred to 3GPP TS 25.212, which defines UMTS multiplexing and channel coding, arguing that any 3G-compliant phone inherently implements the patented features.
- The second group concerned 4G Patents, referencing 3GPP TS 36.212 (v8.8.0) on multiplexing, channel coding, and mapping to physical channels in LTE. The claims covered methods for transmitting antenna configuration information using a bit mask—allowing synchronization between the user equipment (UE) and base stations (WTS), thereby improving data transmission.
Since this specification forms part of global LTE standards (including in Indonesia), Nokia argued that any LTE device compliant with TS 36.212 necessarily performs the patented steps and thus requires a valid FRAND license.
All groups referred to the ETSI definition of “essential”, which states that an IPR is considered essential if, on a technical (not commercial) basis, and given the state of the art during standardization, it is impossible to make, sell, or operate compliant equipment without infringing that IPR.
Patent Holders must therefore submit an Intellectual Property Rights (IPR) Information Statement and irrevocable Licensing Declaration, agreeing to license under FRAND terms—preserving exclusivity, but balancing it with fair and non-discriminatory access.
Contractual and Institutional Dimensions
The contractual dimension was reinforced through Nokia’s global and local licensing history, used to demonstrate its FRAND commitment and non-discriminatory practices. Disputes typically arose when existing licenses expired and renewal negotiations failed, leaving subsequent product distributions outside the licensing scope.
At this stage, familiar SEP debates emerged:
- Was the FRAND offer economically fair and reasonable?
- Was there any discrimination?
- Who acted in good faith—the willing or unwilling licensee?
- And what remedies were proportionate—monetary compensation or injunctions?
Expert testimony regarding the necessity of TS 36.212 for LTE devices supported the “implementation of standard = implementation of claim” reasoning typical in cross-border SEP disputes.
Institutionally, 3GPP itself is a collaborative project among global standards organizations (ETSI in Europe, ATIS in the U.S., ARIB/TTC in Japan, TTA in Korea, CCSA in China, and others). Thus, 3G/4G/5G standards are collective products, not proprietary to a single developer.
ETSI provides IPR policies and declaration procedures, not a license pool. Consequently, the prevailing commercialization model is bilateral FRAND licensing, though optional license pools exist in certain sectors.
All four cases referred explicitly to the ETSI IPR Policy and 3GPP Working Procedures (particularly Article 55 on early IPR disclosure), emphasizing that:
- Technical contributions may contain essential IPR;
- Such IPR must be disclosed as early as possible; and
- Licenses must be available on FRAND terms to any willing implementer to ensure public interoperability.
Lessons and Legal Implications
Together, these four cases represent Indonesia’s first publicly visible chapter in SEP litigation.
The plaintiffs explicitly linked Patent claims to 3GPP Technical Specifications, affirmed ETSI declarations and FRAND commitments, and connected them to domestic device certifications as inferential proof of implementation.
For industry players, the lesson is clear:
When private technology “graduates” into a public standard, Patent rights remain—but they are burdened with access obligations under FRAND. Conversely, implementers gain access to standards but must negotiate in good faith for valid licenses.
In the 5G/IoT horizon, similar disputes will likely intersect with competition law and cross-jurisdictional coordination (including anti-suit injunction issues). Thus, compliance playbooks—covering standard-to-claim mapping, negotiation documentation, and economic reasonableness assessments—should be prepared from the outset.
Reassessing Essentiality
In evaluating such cases, it is critical to resist the assumption of “automatic essentiality.” As noted by Yi Yu et al. (2024), an effective defense begins by testing whether the disputed Patent is truly essential to the relevant standard or merely directed to optional features not necessarily implemented.
This test requires line-by-line mapping between claim elements and mandatory clauses of the standard, along with field verification of whether the accused device actually activates those features (e.g., 64QAM support in specific HSDPA profiles or antenna/MIMO configurations triggering special bit masks).
If such features are optional or disabled in certain variants, the “standard implementation = claim implementation” argument weakens, and the burden of proof shifts back to the SEP holder.
An equally crucial inquiry concerns chronology—from which version or release the mapped standard clause was introduced. As recommended by Yi Yu et al. (2024), one must trace the earliest version of the claimed provision, as different 3GPP releases (e.g., TS 25.212 v7.12.0 for 3G and TS 36.212 v8.8.0 for LTE) affect whether all accused products fell within scope when marketed.
In the Indonesian context, this involves verifying device profiles and LTE certification categories, as well as actual antenna configurations available to local operators, and firmware mapping of bit masks as specified in TS 36.212, Section 5.3.1.1.
If some devices only comply with subsets or fallback modes not requiring the mapped clause, essentiality again becomes questionable.
National Policy Perspective
From a policy standpoint, Article 78 of the Indonesian Patent Law—which prohibits license clauses detrimental to national interests or obstructing technology transfer—serves as a normative anchor for applying FRAND principles in Indonesia.
As Rani Nuradi (2023) observed, the state has a legitimate interest in ensuring fair access to standardized technologies without abolishing Patent exclusivity. Thus, when a Patent is positioned as an SEP, Article 78 provides a legal basis for authorities or courts to assess whether royalty structures, portfolio scopes, or non-technical obligations (such as excessive bundling or disproportionate cross-grants) remain fair and non-discriminatory—or whether they instead hinder technology diffusion and interoperability, thereby harming national interests.
Comparative Insights: U.S. and Europe
In the United States, failure to disclose potential essentiality to an SSO may result in severe remedies—ranging from implied waiver or equitable estoppel (making the Patent unenforceable) to remedy limitations (royalties only) or findings of Patent misuse.
In the European Union, the Huawei v. ZTE framework underscores the importance of proper FRAND negotiation procedures. If an SEP holder bypasses these steps and directly seeks injunctions, it risks being found to have abused a dominant position.
While these approaches should not be copied wholesale, they collectively illustrate that essentiality + disclosure + negotiation conduct form the triad determining the legitimacy of SEP enforcement.
Toward a Structured Indonesian Framework
For Indonesia, a tiered analytical approach may be adopted:
- Substantive Filter: Article 78 serves as a substantive filter for license terms. Courts may invalidate “choking” clauses—such as disproportionate royalties, exclusivity that hinders local content (TKDN), or restrictions on knowledge transfer.
- Good Faith Conduct: Article 1338 of the Civil Code and the principle of fairness allow assessment of FRAND negotiation behavior—whether a party was willing or unwilling, delayed strategically, or made insincere counteroffers.
- Remedy Proportionality: Courts may prefer monetary compensation or royalties over injunctions, unless there is strong evidence of an unwilling licensee.
- Disclosure Obligation: While Indonesia lacks an explicit doctrine of “implied waiver,” failure to disclose the relationship between an invention and a standard—especially if deliberate—could be deemed abuse of rights or contrary to public interest, weakening claims for injunctive relief and favoring court-supervised FRAND royalties instead.
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