Introduction

A patent is a right granted to an inventor to commercially exploit his or her invention to the exclusion of others. It can be obtained for a new or improved machine or process, article of manufacture, or chemical composition.

The "first-to-file" system used by Indonesia to administer its patent system means that, the one who files the application first has the right of ownership in Indonesian territory. On August 1, 1991, the first patent law in Indonesia came into force. Joined PCT as an Indonesian member. In 1997, the Indonesian Patent Office saw a number of important changes. going into effect on September 5, 1997. The original 14-year patent term was extended to 20 years. For new but not necessarily non-obvious inventions, Indonesia offers a "simple patent" process.

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In 1997, the duration of "simple patents" was extended from five to ten years from the date of grant. Furthermore, certain restrictions on the patentability of animal and plant varieties were revoked in 1997. Organisation of Indonesian IPR/patent system the Department of Laws and Human Rights the Directorate General of Intellectual Property Rights (DGIP) and theMinistry of Laws and Human Rights. In 2003, the Minister of Law and Human Rights released Decree No. M.11. PR.07.06, allowing candidates to submit applications for scientific disciplines at the Ministry's provincial offices, as part of their efforts to support native candidates' use of the IPR system.

The two types of Patents that are recognized in Indonesia are:

1) Standard Patents: These protect fresh products and techniques that are useful in real-world situations and show a “inventive step” ahead from related applications.

2) Simple Patents: Applicable to new, useful products or devices that do not always constitute a “inventive step.”

Although the term of protection for simple patents is shorter, just ten years from the date of filing and is subject to yearly payments, the application and examination processes are theoretically shorter. Standard patents typically require a longer application process and have a maximum 20-year validity period, subject to annuity payments. Applicants must provide technical descriptions and drawings, as well as specify the scope of protection sought and an explanation of the invention’s operation, for all applications.

FILING PROCESS OF PATENT IN INDONESIA

1) Search: The first step in preparing an application to register a patent is "searching". A prior search is helpful in determining the existence of filed patents, even though it is not required.

2) Application: Each application from a candidate that includes the supporting information: Power of Attorney no legalization Appointment of Invention no legalization Specification claims and abstract related to patent shall be in English which needs to be translated into Indonesian language, Documents of priority if convention priority is asserted.

3) Publication: Eighteen months after the date of filing, a patent application shall be issued.

4) Opposition: Interested parties are welcome to voice their opposition during the six-month of publication period. During the examination phase, the announcement of confrontation and counter statement will be taken into consideration.

5) Examination: If a petition for examination is not registered within 36 months of the application's filing date, it may be automatically withdrawn. In addition, a simple patent is reviewed only for originality.

6) Registration: Within 36 months of receiving an examination date, the patent office is required to grant or deny a patent. Following the conclusion of all formalities, the invention will be entered into the general register of patents and a patent certificate will be issued by the Indonesian Patent Office.

One can file for registration

1) “Directorate General of Intellectual Property Rights”

2) “Administrative of the Directorate of Patent”

The documents which are required while filing for the registration are as follows:

1) Patent specification (in Bahasa Indonesian) with claims, drawings, and description

2) Application form

3) Power of Attorney in the name of the local law firm and patent agency, If the attorney files the application

4) Ownership declaration

5) Assignment of Invention (where appropriate, to be carried out by the inventor)

Documents do not need to be notarized or legalised.

Enforceability

Although intellectual property laws in Indonesia are compliant, there is currently a lack of an effective criminal enforcement protection system to match. There are two IP routes in Indonesia:

1) Criminal Enforcement & 2) Civil Enforcement

Criminal enforcement:There are two main reasons why criminal enforcement is challenging: first, there is a certain amount of opaqueness in police operations. And, second even though a new enforcement organization has just been established, it is too soon to tell if this organization will be able to address the issues with piracy. The Directorate of Investigation (PPNS), a division of the Directorate General Intellectual Property Rights, currently has a resource level of officers.

Civil enforcement:The patent law also carries provisions for Compulsory Licensing. Article 82 allows any person to apply for the implementation of a patent after thirty-six months from the date the patent was first issued, if the said “Had not been implemented in Indonesia by the Patent Holder even though in that respect has been opportunity for commercial implementation of the patent which should have been applied”.

If the applicant satisfies the following requirements the government may grant a compulsory license:

a) Has the resources to fully utilize the patent; and

b) Is capable of enforcing the patent on their own

The Compulsory License is only good for the time required to implement the patent. The District Court will set the amount of royalties that the Compulsory License Holder must pay to the Patent Holder. The Compulsory License will be granted after the District Court finds that the infestation is executable and will "afford benefits for a large portion of the society."

Prosecution: Sentences for criminal offences include a maximum fine of EUR 350,000 or seven years in jail.

Indonesia’s Patent Law Is Amended By The Omnibus Law

The Indonesian Omnibus Law seeks to draw in investment and boost economic expansion. The country's patent law has been revised with the intention of promoting innovation, streamlining procedures, and harmonizing the system with global norms. However, because there is currently no workable framework, the changes have not been well received.On November 2, 2020, Indonesia’s long-awaited Omnibus Law (Law No. 11 of 2020) was put into effect, amending the country’s intellectual property laws in several ways. The goal of the law is to encourage foreign investment. Reducing the time needed for simple patent prosecution, giving patent applicants more flexibility with regard to the working requirement.

The definition of simple patents, whichare now defined as patents granted for new inventions, improvements to already-existing products, with useful applications, and industrial applications, has been updated and clarified in a slight way by the amended law. It is still too early to tell how the addition of the phrase “practical uses” will impact the patent application process, but it is a new addition. Furthermore, it is now specifically stated that “improvements to existing products” include straightforward goods, straightforward procedures, and straightforward techniques.Simple patent applications now have a 14-day publication period, shortened from 14 working days after the filing date. Any opposition to the basic patent application will be taken into consideration during the substantive examination phase, which needs to be requested at the time of application filing. Ultimately, a simple patent will either be granted or denied within six months of the application filing date.

There has been an expansion of the working requirement, which states that the patent holder must use the patented innovation in Indonesia. The creation, importation, and licensing of the patented good, service, method, system, or application now constitutes patent implementation. This clause used to only refer to using the process or making the products in Indonesia. This implied that, in order to comply with this requirement, a foreign patent holder would have had to establish a manufacturing facility in Indonesia, failing which the patent would have been subject to cancellation or compulsory licensing.

If necessary, patent holders may still ask for the patent implementation requirement to be postponed.In addition to the working requirement amendments, Article 82 on compulsory licensing has been modified to allow patent holders to avoid compulsory licensing if they import or license the patented process, method, or product.

Difference between Indonesian And Indian Patent Law

1) India typically has a longer examination period than Indonesia. Due to an application backlog, the process in India may take several years, but Indonesia may have a relatively shorter examination period.

2) Pre-grant opposition is permitted in India, allowing third parties to contest a patent's grant prior to its issuance. Conversely, opposition is permitted in Indonesia following the publication of the patent application.

3) Because government fees, professional fees, and other related expenses vary between the two countries, there may be differences in the costs associated with filing and maintaining patents.

4) Both Indonesian and English may be used to file a patent application in Indonesia. In India, a certified translation must be supplied within a given time frame if any document isin Hindi &English.

5) The duration of a granted patent varies; in Indonesia, it is 20 years from the earliest priority date or the filing date, while in India, it is 20 years from the filing date.

6) India permits direct filing by foreign applicants without a local representative, whereas Indonesia frequently requires a local agent or attorney to file a patent application.

CONCLUSION

Numerous amendments have been made to Indonesia's current patent law concerning requirements for patentability, grace periods, mandatory licensing, and provisions that are comparable to those found in other countries pertaining to intellectual property. Due to the government of Indonesia's notable moves in the right direction, a large number of foreign investors are looking to make investments in the country recently. It's time for Indonesia to shed her ugly reputation as one of the world's worst intellectual property protectors, as many foreign nations view her.Nonetheless, the Indonesian patent system allows new investors to establish and operate businesses there.

Author : TANYA SHUKLA, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

REFERENCES

1) Indonesia’s Omnibus Law Amends the Patent Law and the Trademark Law to Support Foreign Investment, https://www.tilleke.com/insights/indonesias-omnibus-law-amends-patent-law-and-trademark-law-support-foreign-investment/

2) INDONESIAN PATENT SYSTEM: AN OVERVIEW, Prabodh M, International Journal of Drug Regulatory Affairs; 2014,

3) Patent in Indonesia, IP Coster, https://www.ip-coster.com/IPGuides/patent-indonesia

4) Patent in Indonesia, Conventus Law, https://conventuslaw.com/report/patents-in-indonesia/