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Patent

What is a Patent?

Patent is a technical term which is frequently used at present, but only a little to be comprehensible. For some of people, it constitutes an unclear legal concept and has a small relation with daily living.

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.

Patent is therefore :

• Exclusive right

• Invention in technology

• To exploit the invention or to authorize another person to execute

• Granting after examination

Invention shall mean :

• Idea of the inventor

• Activities of a specific problem solving in the field of technology

• Product or process

• Improvement and development in industry

Patentable Invention :

• Clearly expressed

• New/novel

• Involve inventive step

• Susceptible of industrial application

A Patent shall not be granted to an Invention regarding:

• any process or product of which the announcement and use or implementation contravenes the prevailing rules and regulations, religious morality, public order or ethics

• any method of examination, treatment, medication, and/or surgery applied to humans and/or animals

• any theory and method in the field of science and mathematics

• all living creatures, except micro-organism

• any biological process which is essential in producing plant or animal, except non-biological or micro-biological process or microbiological process.

Uncoverable invention :

• Esthetical creation

• Scheme

• Arrangement and method to conduct activities : involving mental, amusement, business

• Arrangement and method on computer programs

• Presentation about an information

Global Trade competition

The competition on free trade must be faced. The competition on trade/economy is indeed a competition in technology and service. The failure of business performers in utilizing the patent protection system may cause :

• A risk of being sued on infringements by other parties

• Big chances of facing obstacles to enter the designated market countries

• The inabilities to enter global competition

• The inabilities to maintain the superiority of competition energy of their products (the risk of being doubled by the third party)

Patent and expansion of business world

The business world expansion is indeed the expansion in technology, from which sector, patent is contributing 5 (five) methods :

• Constitute an incentive to create new technology

• Create atmosphere of motivating the implementation of new technology in industrial sector successfully

• Motivate the technology exchange

• Constitute the planning tool and strategy formulation in technology and industry expansion improvement

• Motivate investment

The kind of Patent and the duration of protection

1. Regular patent (product or process), the protection period is 20 years commencing from the filing date (cannot be extended)

2. Simple patent (product or tool), the protection period is 10 years commencing from the filing date (cannot be extended)

Those who entitled to obtain a patent :

1. Inventor(s)

2. The subsequent recipient of inventor’s rights

3. 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.

–       Inventor shall be entitled to receive just compensation by considering the economic benefit 

        that can be obtained from said Invention.

–       The amount of compensation 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 right of patent holder

1. Makes, uses, sells, imports, rents out, delivers, or makes available for sale or rental or delivery of the Patented product.

2. Uses the Patented production process to make products and commits other activities as referred to in point 1.

The obligation of patent holder

1. To make products or to use the process that has been granted a Patent in Indonesia.

2. To use the patented production process to produce goods and other activities as referred to in point 1

The process of patent application :

1. A patent shall be granted on the basis of an Application.

2. Each Application may be filed for one Invention only, or a number of Inventions that constitute a unity of Invention.

3. To pay the application fee

The phases conducted by the Directorate Patent on each patent application :

1. Administrative examination

2. Announcement of application  (A)

3. Substantive examination

4. The granting or rejection  of application

5. Announcement of patent (B)

6. Issuance of Patent Certificate

Transfer and License of Patent

A Patent or the ownership of a Patent may be transferred in whole or in part by: inheritance, donation, testament, written agreement, or other reasons recognized by the law.

A Patent Holder shall have the right to grant a license to other person on the basis of a licensing agreement.

Revocation of Patent

1. Null and void by law (the Patent Holder does not fulfill his obligation to pay the annual fees within the stipulated period)

2. Revocation of Patent at the Request of the Patent Holder

3. Revocation of Patent by Virtue of a Lawsuit

-          The relevant Patent should not have been granted according to Article 2, Article 6, or Article 7

-          The relevant Patent is the same as another Patent that has been granted to another person

Settlement of disputes

• If a Patent is granted to a person other than the person entitled to relevant Patent, the person so entitled to the Patent may bring a lawsuit to the Commercial Court.

• Upon the decision of the Commercial Court may only be filed a cassation.

• The parties concerned may settle their dispute by means of arbitration or an alternative dispute resolution (negotiation, mediation, conciliation and other means chosen by the parties concerned under the prevailing law).

Patent Registrations

As for the requirement which is needed for filing patent application are as follows:

1. The Special Power of attorney (simply sign)

2. The Special Declaration (simply sign)

3. The Assignment (if the inventor is not as an applicant)

4. The Description of the invention and abstraction

5. The sketch or the figures of the invention

References :

- Short course in Intellectual Property Right (Elementary) - Asian Law Group Pty Ltd. - Ausaid.

- Directorate General of Intellectual Property Right - Indonesian Ministerial of Justice and Human Right.

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