I FORMS OF INTELLECTUAL PROPERTY PROTECTION
Intellectual property protection and enforcement in Indonesia have already existed in Indonesia since the Dutch Colonial Government era, where it enacted the Auteurswet Stb. No. 600 Year 1912 (Copyright), Ooctroi Wet No. 313 Year 1910 (Patent), and Reglement Industriele Eigendom No. 545 Year 1912 (Trademark). Even after the independence of Indonesia in 1945, these laws were still relevant and in force until 1961, where the government of the Republic of Indonesia enacted the Law No. 21 Year 1961 on Marks, Law No. 6 Year 1982 on Copyrights, and Law No. 6 Year 1989 on Patents. As time went by, Indonesia further ratified various international agreements concerning Intellectual Property Rights.
Now, Indonesia is a party to the Trade-Related Aspects of Intellectual Property Rights (TRIPS), Madrid Protocol, Beijing Treaty on Audiovisual Performances, Berne Convention, Paris Convention, Patent Cooperation Treaty, and WIPO Copyright Treaty. Furthermore, Indonesia is also a party to several bilateral and/or regional agreements/treaties, such as the ASEAN Patent Examination Cooperation (ASPEC) and the Japan-Indonesia Patent Prosecution Highway (PPH).
Currently, the grouping of Intellectual Property Rights in Indonesia is as under:
Intellectual Property Protection Grouping in Indonesia
Whereas the legal basis of the protection of the above are as under:
- The Law No. 29 Year 2000 on Plant Varieties
- The Law No. 30 Year 2000 on Trade Secrets
- The Law No. 31 Year 2000 on Industrial Designs
- The Law No. 32 Year 2000 on Integrated Circuit Layout Designs
- The Law No. 28 Year 2014 on Copyrights
- The Law No. 13 Year 2016 on Patents
- The Law No. 20 Year 2016 on Trademarks and Geographical Indications
- The Law No. 11 Year 2020 on Job Creation (the Omnibus Law)
i. Simple Patents/Utility Models
Simple patents/utility models are governed by the Law No. 13 Year 2016 on Patents (the Patent Law) and the Law No. 11 Year 2020 on Job Creation (the Omnibus Law). Subject to registration, simple patents allow for obtaining exclusive rights if they can fulfil the following criteria:
- Development of known products or processes
- Possess practical uses
- Applicable commercially¹
The development of the above cover simple products, simple processes, or simple methods. Once registered, simple patents/utility models are valid for 10 years from the filing date.
Unlike simple patents/utility models, conventional patents are not affected by the Omnibus Law and the Patent Law is the only law which governs the protection of conventional patents. Subject to registration, simple patents allow for obtaining exclusive rights if they can fulfil the following criteria:
- Inventive steps
- Applicable commercially.
Conventional patents can cover both product and process patents. Once registered, conventional patents are valid for 20 years from the filing date.
It is also worth mentioning that there are inventions that cannot be filed, such as aesthetical creations, schemes, business methods, computer programs per se, presentation of information, and discoveries that are considered as new uses for known products and/or new forms of existing compounds that do not result in significant increase in efficacy and there are differences in related chemical structures that have been known from the compounds.²
Trademarks (as well as Geographical Indications) are regulated under the Law No. 20 Year 2016 on Marks and Geographical Indications (the Trademark Law). The basis of registration adopts the “first to file” approach and registered Trademarks are valid for 10 years – effective from the filing date. While no prior use requirement is essential for the purpose of application and registration, it is always advised to use the registered Trademarks to avoid non-use cancellation action filed by any
¹Previously, a simple patent/utility model only needs to be novel and can be applied commercially. The Omnibus Law changed the criteria in 2020.
²Article 4 of the Law No. 13 Year 2016 on Patents highlights several inventions that are not protectable in Indonesia. It is important to highlight that such limitations mean second medical use claims are no longer allowed.
third parties. Furthermore, Indonesia adopts strict classification system on its e-filing platform. Any goods or services that do not exist in the system may not be filed – hence prior checking is advised.
Copyrights are governed under the Law No. 28 Year 2014 on Copyrights (the Copyright Law). The Copyright protests various in the realms of art, science, and literature. The protection period starts from the first date of publication and depending on the nature of the protectable work. For instance, Softwares and other computer programs are protected for 50 years form the first publication date. Whereas songs and books are protected up to 70 years from the passing of the creator(s).
II RECENT DEVELOPMENTS
The Omnibus Law adjusted several provisions in both Patent and Trademark Laws in 2020. The changes focused on several aspects of patents and simple patents. The most significant change is the obligation to use or perform registered patents in Indonesia, otherwise they are prone to be invalidated or subject to compulsory licensing. This marked the end of the prior practice where it was feasible to postpone the use of registered patents by submitting written requests to the Indonesian Patent Office. The compulsory licensing can be requested if a registered patent has not been used or performed in Indonesia within 36 months.
Furthermore, during COVID-19 Indonesia has pushed for the use of registered patents that deemed necessary to mitigate the virus. For instance, the President issued the Presidential Regulation No. 100 Year 2021 on Patent Use by the Government for Remdesivir. Under the regulation, the government may appoint a pharmaceutical industry to perform the patent if the nature of the use remains non-commercial. Furthermore, the patent holder will receive 1% from the nett sales of Remdesivir. Furthermore, the President also issued Presidential Regulation No. 101 Year 2021 on Patent Use by the Government for Favipiravir. The content of the regulation is identical to Presidential Regulation No. 100 Year 2021 on Patent Use by the Government for Remdesivir. These regulations show how the President finally used the provisions which would allow the emergency use of essential medications in the event of health emergency in Indonesia.