LAW OFTHE REPUBLICOFINDONESIA
NUMBER14YEAR2001
REGARDING
PATENTS
WITHTHE MERCYOFGODALMIGHTY
PRESIDENTOFTHE REPUBLICOFINDONESIA,
Considering: a. that in accordance with Indonesia's ratification on the international agreements, the ever growing development of technology, industry and trade, a Patent Law that can provide appropriate protection for inventors is needed; - b.
- that the matter mentioned in item a is also needed in the framework of creating a conducive climate for business competition, which is fair and considering the interest of the public in general;
- c.
- that based on the considerations as mentioned in items a and b, and learning from the experiences in implementing the existing Patent Law, is necessary to enact a new Patent Law to replace Law no. 6 of 1989 on Patents as amended by Law no. 13 of 1997.
In view of: 1. Article 5 paragraph (1), Article 20 paragraph (2) and Article 33 of the Constitution of 1945;
2. Lawnumber7of1994regarding theRatificationoftheAgreementEstablishing the World Trade Organization, (State Gazette of 1994 no. 57, Supplementary State Gazette no. 3564);
With the approval of
THE HOUSE OF REPRESENTATIVES OF THE REPUBLIC INDONESIA
DECIDES
to enact: LAWon PATENTS
CHAPTER I
GENERALPROVISIONS
Article 1
In this Law: - Patent shall mean an exclusive right granted by the State to an Inventor for his Invention in the field of technology, for a certain time, to exploit his Invention or to authorize another person to exploit it.
- Invention shall mean an Inventor's idea that is poured in any activity of solving a specific problem in the field of technology, either in the form of a product or process, or an improvement and development of a product or a process.
- Inventor shall mean a person or several persons acting together implementing an idea poured in an activity resulting in an Invention.
- Applicant shall mean those filing a Patent Application.
- Application shall mean a Patent Application filed at the Directorate General.
- Patent Holder shall mean an Inventor as the owner of Patent or II recipient of such right from the owner of Putent or a subsequent recipient of Patent from the person mentioned above who is registered in the General Register of Patents.
- Proxy shall mean II consultant of intellectual property rights.
- Examiner shall mean a person who because of his expertise is appointed by the Minister liS a functional official as patent examiner and shal1 have the duty to conduct substantive examination on Applications.
- Minister shan mean the minister, whose scope of duties and responsibilities includes the guidance in the fieldofintellectual propertyrights,iucluJhlb Paleuls.
- Directorate General shal1 mean the Directorate General of Intel1ectual Property Rights under a department presided over by the Minister.
- FilingDateshal1meanthedateofreceiptofanApplication,whichhasfulfilledformalityrequirements.
- Priority Right shall mean the right of an Applicant to file an Application originating from a member country of the Paris Convention for the Protection of Industrial Property or the Agreement Establishing the World Trade Organization in order to get recognition that the Filing Date of the country of origin be the priority date in the country of designation that is also a member country of the two agreements, provided that the filing of the Application is made during the period prescribed in the Paris Convention for the Protection of Industrial Property.
- License shall mean a permission granted by the Patent Holder to another party by means of an agreement based on the grant of right to enjoy the economic benefit of a Patent that is protected for a certain period oftime and certain requirements.
- Day shall mean working day.
CHAPTERII
SCOPEOF PATENTS
Part One
Patentable Inventions
Article 2 - (1)
- A Patent shall be granted to an Invention, which is novel, involves an inventive step and is susceptible of industrial application.
- (2)
- An Invention shall be considered to involve an inventive step if said Invention does not constitute something that is obvious to a person skilled in the art.
- (3)
- The evaluation of whether or not an Invention constitutes something that is obvious must be made taking into account the state of the art at the time the Application is filed or which has existed at the time the first Application was filed, in case the Application is filed on the basis of a Priority Right.
Article 3 - (1)
- An Invention shall be considered novel, if at the date of filing of the Application said Invention is not the same with any previous technological disclosure.
- (2)
- A technological disclosure as referred to in paragraph (1) is one which has been announced in Indonesia or outside Indonesia in writing, by a verbal description or by a demonstration, or in other ways,whichenable askilledpersontoimplementthe Inventionbefore;
- a.
- the Filling Date, or
- b.
- the priority rate.
- (3)
- The previous technological disclosure as referred to in paragraph (1) includes the documents of Applicationsfiled in Indonesia, which have been published on or after the Filing Date ofApplication being substantively examined and which have a Filing Date that is prior to the Filing Date or priority date ofApplicationbeing substantively examined.
Article4 - (1)
- An Invention shall not be deemed to have been announced, if, within a period of at most 6 (six) months before the Filing Date;
- a.
- the Invention has been exhibited in an officialor officially recognized international exhibition in Indonesia or abroad or in an officialand officially recognized national exhibition in Indonesia;
- b.
- the Invention has been exploited in Indonesia by its Inventor in relation to experimentation for purposes of research and development.
- (2)
- An Invention shall also not be deemed to have been announced, if, within a period of 12 (twelve) months before the Filing Date, it was announced by any other person by way of breaching an obligation to preserve the confidentiality ofthe relevant Invention.
Article5
An Invention shall be considered susceptible of industrial application if it can be implemented in the industrial as described in the Application.
Article 6
AnyInvention inthe form ofaproduct ordevice,whichisnovelandpossessespracticalusevaluesbecauseof its shape, configuration, construction, or component may be granted a legal protection in the form of a Simple Patent.
Article 7 A Patent shall not be granted to an Invention regarding: - a.
- any process or product of which the announcement and use or implementation contravenes the prevailing rules and regulations, religious morality, public order or ethics;
- b.
- any method of examination, treatment, medication, and/or surgery applied to humans and/or animals;
- c.
- any theory and method in the field of science and mathematics; or
- d.
- i. all living creatures, except micro-organism
ii. any biological process which is essential in producing plant or animal, except non-biological process or microbiologicalprocess.
Part Two Duration of Patents
Article 8 - (1)
- A Patent shall be granted for a period of 20 (twenty) years, which cannot be extended, commencing from the Filing Date.
- (2)
- The date of commencement and expiry of a Patent shall be recorded and announced.
Article 9
ASimple Patent shall be granted for a period of 10 (ten) years, which cannot be extended, commencing from the Filing Date.
Part Three Subjects of Patents Article 10 |
(1) | An Inventor or u subsequent recipient of the rights of the Inventor shall be entitled to obtain II Patent. |
(2) | If an Invention is produced jointly by several persons, the right on the Invention shall belong to the relevant Inventors. |
Article 11
Unless proven otherwise, those who are firstly declared as the Inventor in the Application shall be deemed to be the Inventor.
Article 12 - (1)
- Unless agreed otherwise in an employment contract, the party entitled to obtain a Patent on an Invention produced shall be the one who has commissioned the work.
- (2)
- The provision as referred to in paragraph (1) shall also be applicable to an Invention by an employee or a worker using data and/or facilities available in his work, even though the employment contract does not require him to produce an Invention.
- (3)
- An Inventor as referred to in paragraph (1) and paragraph (2) shall be entitled to receive just compensation by considering the economic benefit that can be obtained from said Invention.
- (4)
- The amount of compensation as referred to in paragraph (3) may be paid:
- (a)
- in a certain amount or in a lump sum;
- (b)
- as a percentage;
- (c)
- as a combination or a lump sum together with a gift or bonus;
- (d)
- a combination of percentage with a gift or bonus; or
- (e)
- any other forms agreed by the parties; the amount of which shall be determined by the parties concerned.
- (5)
- Where no agreement can be reached regarding the method of calculation and the determination of the amount of compensation, the Commercial Court may be requested to decide the matter.
- (6)
- The provisions as referred to in paragraph (1), paragraph (2) and paragraph (3) shall not in any way invalidate the right of the Inventor to have his name included in the Patent Certificate.
Article 13
- (1)
- By obeying the other provisions under this Law, a party who exploits an Invention at the time a similar Invention is filed for Patent shall still be entitled to exploit the Invention as a prior user, even though the similar Invention is then granted a Patent.
- (2)
- The provisions as referred to in paragraph (1) shall also be applicable to any Application that is filed with Priority Right.
Article 14
The provisions as referred to in Article 13 shall not be applicable when the party, who exploits the Invention as a prior user, exploits the Invention by using the knowledge about the Invention from the description, drawings, or any other information from the Invention for which a Patent is requested.
Article 15 - (1)
- The party who exploits an Invention as referred to in Article 13 shall only recognized as the prior user, if, after a Patent has been granted for the same Invention, he submits a request for such purpose at the Directorate General.
- (2)
- A request for recognition as a prior user shall be furnished with evidence that the exploitation of said Invention was not performed by using a description, drawing, or sample of, or other information on the Invention for which a Patent has been requested.
- (3)
- The recognition as the prior user shall be issued by the Directorate General in the form of a Prior User Certificate upon payment of a fee therefore.
- (4)
- A Prior User Certificate shall expire at the same time as the expiry of the Patent for the same Invention. .
- (5)
- The procedure for obtaining the recognition as a prior user shall be regulated by a Government Regulation.
Part Four
Rights and Obligations of a Patent Holder
Article 16 - (1)
- A Patent holder shall have the exclusive right to exploit his Patent and prohibit any other party who without his consent:
- a.
- in the case of product-Patent: makes, uses, sells, imports, rents out, delivers, or makes available for sale or rental or delivery of the Patented product;
- b.
- in the case of process-Patent: uses the Patented production process to make products and commits other activities as referred to in point a.
- (2)
- In the case of process-Patent; such prohibition against any other party who without his consent commits the importation as referred to in paragraph (i) shall only apply to imported products solely produced from the use of the pertinent process Patent.
- (3)
- Exempted from the provisions as referred to in paragraph (1) and paragraph (2) if the use of said Patent is for the sake of education, research, experiment, or analysis, as long as it does not harm the normal interest of the Patent holder.
Article 17
- (1)
- Without prejudice to the provisions in Article 16 'paragraph (I), a Patent holder shall be obliged to make products or to use the process that has been granted a Patent in Indonesia.
- (2)
- Exempted from the obligation as referred to in paragraph (1) if the making of the product or the use of the process is only suitable to be implemented in a regional scale.
- (3)
- The exemption as referred to in paragraph (2) may only be approved by the Directorate General if the Patent Holder has submitted a written request that is accompanied by the reasons and evidence issued by the authorized agency.
- (4)
- The requirements regarding the exemption and the procedure of submitting a written request as referred to in paragraph (3) shall be further regulated by Government Regulation.
Article 18
For purposes of maintaining the validity of a Patent and the recording of licenses, the Patent Holder or licensee must pay the annual fees.
Part Five Legal Action against Infringement on Patent
Article 19
In the case of the importation of a product into Indonesia of which the process to produce the relevant product has been protected by a Patent based on this Law, the Patent Holder of the process shall have the right, based on the provisions of Article 16 paragraph (2) to bring a legal action against the imported product, if the product was made in Indonesia by using the Patented process.
CHAPTER III PATENT APPLICATIONS
Part One General
Article 20 A Patent shall be granted on the basis of an Application.
Article 21
Each Application may be filed for one Invention only, or a number of Inventions that constitute a unity of Invention.
Article 22 A Patent Application shall be filed with the payment of a fee to the Directorate General.
Article 23 - (1)
- Ifan Application is filed by a person other than the Inventor, the Application must be furnished with a statement with adequate supporting evidence that he is entitled to the said Invention.
- (2)
- The Inventor may examine the Application form filed by a person other than the Inventor as referred to in paragraph (1) and may at his own expense request a copy of documents of said Application.
Article 24
- (1)
- An Application shall be filed at the Directorate General in writing in the Indonesian Language.
- (2)
- The Application form must contain:
- a.
- the date, month and year of Application;
- b.
- clear and full address of the Applicant;
- c.
- full name and nationality of the Inventor;
- d.
- where the Application is filed by a Proxy, full name and address of the Proxy concerned;
- e.
- a special power of attorney, where the Application is filed by a Proxy;
- f.
- a request that a Patent be granted;
- g.
- the title of Invention;
- h.
- a claim(s) implied in the Invention;
- i.
- a written description of the Invention which contains a complete information on the ways of implementing the Invention;
- j.
- drawings mentioned in the description required for clarification;
- k.
- an abstract regarding the Invention.
- (3)
- Provisions regarding the procedure for filing of an Application shall be further regulated by Government Regulation.
Part Two
Consultant of Intellectual Property Rights
Article 25
An Application may be filed by the Applicant or through a Proxy.
The Proxy as referred to in paragraph (1) shall be a consultant of intellectual property rights that has been registered at the Directorate General.
Beginning on the date of receipt of the Proxy until the date of announcement of the relevant Application, the Proxy shall be obligated to preserve the confidentiality of the Invention and all documents of Application.
Provisions regarding the requirements to be elected a consultant of intellectual property rights shall be further regulated by Government Regulation whilst the procedure for election shall be further regulated by Presidential Decree.
Article 26 - (1)
- An Application which is filed by an Inventor or an Applicant who does not reside or does not have a fixed domicile in the territory of the Republic of Indonesia must be filed through his Proxy in Indonesia.
- (2)
- The Inventor or Applicant as referred to in paragraph (1) shall declare and elect a residence or legal domicile in Indonesia for the purpose of said Application.
Part Three
Application with a Priority Right
Article 27 - (1)
- An Application filed with a Priority Right as regulated by the Paris Convention for the Protection of Industrial Property must be filed within 12 (twelve) months commencing on the date on which the first Application was received by any country that also participates in said convention or has become a member country of the World Trade Organization.
- (2)
- ByfullyobservingtheprovisionsofthisLawregardingtherequirementswhichmustbefulfilledinthe letter of Application, an Application with a Priority Right as referred to in paragraph (1) must be furnished with a copy of the priority document validated by the competent authority in the country concerned within a period of 16 (sixteen) months commencing on the priority date.
- (3)
- If the requirements in paragraph (1) and paragraph (2) are not fulfilled, the Application may not be filed by using a Priority Right.
Article 28
- (1)
- The Provisions as referred to in Article 24 shall be applicable mutatis mutandis to an Application with Priority Right.
- (2)
- The Directorate General may request that an Application filed with a Priority Right also be furnished with:
- a.
- a valid copy of the documents connected with the results of examination carried out with respect to the first Application abroad;
- b.
- a valid copy of the Patent document granted in connection with the first Application abroad;
- c.
- a valid copy of the decision of the rejection of the first Application abroad if said Application was rejected;
- d.
- II valid copy of the decision of cancellation of the foreign Application concerned if said Patent has been cancelled:
- e.
- other documents required to facilitate an evaluation that the Invention for which a Patent is requested is indeed a new Invention and truly involves inventive steps and industrially applicable.
- (3)
- The filing of copies of documents as referred to in paragraph (2) may be furnished with separate additional explanations by the Applicant.
Article 29
Provisions regarding the request for II priority document from the Directorate General and regarding the Application that is filed with a Priority Right shall be further regulated by Presidential Decree.
Part Four
Time of Receipt of an Application
Article 30 - (1)
- The Filing Date of an Application shall be the date the Directorate General receives the Application which has fulfilled the provisions as referred to in Article 24 paragraph (1) and paragraph (2) items a, b, f, h, i and j, if the Application has drawings, and after the fee as referred to in Article 22 has been paid.
- (2)
- In the case the description as referred to in Article 24 paragraph (2) items hand i is written in English, the description shall be furnished with its translation in the Indonesian language which must be lodged at the latest 30 (thirty) days from the Filing Date as referred to in paragraph (1).
- (3)
- If the Indonesian translation has not been lodged within the given period as referred to in paragraph (3), the said Application shall be deemed withdrawn.
- (4)
- The Directorate General shall record the Filing Date.
Article 31
If there are deficiencies as referred to in Article 30 paragraph (1) and paragraph (2), the Filing Date shall be the date the Directorate General receives all the minimum requirements.
Article 32 - (1)
- Where the requirements as referred to in Article 30 have been fulfilled, however the Application does not fulfill the provisions of Article 24, the Directorate General may request that such deficiencies be fulfilled at the latest 3 (three) months commencing on the date of transmittal of the notification of deficiencies by the Directorate General.
- (2)
- Based on reasons acceptable to the Directorate General, the period as referred to in paragraph (1) may be extended for a maximum of 2 (two) months upon the request of the Applicant.
- (3)
- The period as referred to in paragraph (2) may be extended for a maximum of 1 (one) month as of the date of expiry of the period, provided that a fee has to be paid by the Applicant.
Article 33
If the requirements have not been fulfilled within the period as referred to in Article 32, the Directorate General shall notify the Applicant in writing that the Application is deemed withdrawn.
Article34 - (1)
- If there are more that one Application for a similar Invention filed by different Applicants, the Application that shall be accepted is one that was first filed.
- (2)
- If the Patent Applications as referred to in paragraph (1) were filed on the same date, the Directorate General shall notify the Applicants in writing to negotiate to decide which Application is to be filed and deliver the decision to the Directorate General at the latest 6 (six) months from the date of the notification.
- (3)
- If the Applicants could not reach an agreement or could not produce a decision or it is impossible for them to negotiate, or the results of the negotiation are not delivered to the Directorate General within the period stipulated in paragraph (2), the said Applications shall be rejected and the Directorate General shall give notice thereof to the Applicants in writing.
Part Five
Amendment of an Application
Article 35
An Application may be amended by revising the description and/or the claims, provided that such amendments do not expand the scope of Invention applied for the original Application.
Article 36 -