CHAPTER II: SCOPE OF PATENTS

Part One: Patentable Inventions

 

Article 2

(1) A Patent shall be granted to an invention which is novel, contains an inventive step and is capable of industrial application.

(2) An invention contains an inventive step if said invention does not constitute something obvious to a person possessing average technical skills.

(3) Evaluation of whether or not an invention constitutes something obvious must be made taking into account the state of the art at the time the patent application is filed or which prevailed at the time the first application was filed where the application is filed on the basis of a priority right.

 

Article 3

(1) An invention is deemed to be novel, if at the time of filing of the patent application said invention is not the same or is not a part of any previous invention.

(2) A previous invention referred to in paragraph (1) is an invention which at the time of or before;

a. the date of filling of a patent application, or

b. the date of filing of a patent application claiming priority rights,

has been announced in Indonesia or outside Indonesia in a manner which enables an expert to implement said invention, or has been announced in Indonesia by a verbal description or by a demonstration of its use or in other ways which enable an expert to implement said invention.

 

Article 4

(1) An invention shall not be deemed to have been announced, if, within a period of at most 6 (six) months prior to the filing of patent application;

a. the invention was exhibited in an official or officially recognised international exhibition in Indonesia or abroad or in an official and officially recognised national exhibition in Indonesia.

b. the invention was used in Indonesia by its inventor in relation to experimentation for research and development.

(2) An invention shall also not be deemed to have been announced, if, within a period of 12 (twelve) months prior to the filing of patent application, it was announced by any other person by way of breaching an obligation to maintain the secrecy of the invention.

 

Article 5

An invention is capable of industrial application if said invention can be produced or can be used in various types of industry.

 

Article 6

(1) Any invention being a process or product which is novel and possesses the qualities of a simple invention which because of its shape, configuration, construction, or component, however, possesses practical use values, may granted legal protection in the form of a Simple Patent.

(2) The requirement of novelty for invention referred to in paragraph (1) shall be limited to inventions used in Indonesia.

 

Part Two: Non-Patentable and Postponable Inventions

 

Article 7

A patent shall not be granted to :

a. an invention regarding a process or product of which the announcement and use or implementation contravenes the prevailing regulations, public order or morality;

b. deleted ;

c. deleted ;

d. an invention regarding methods of examination, treatment, medication, or and surgery applied to people and animals, but excluding any products whatsoever used with or related to said methods;

e. an invention regarding a theory and method in the field of science and mathematics.

 

Article 8

(1) It may determined by Presidential Decision to postpone the granting of patents for certain inventions, either in the form of production processes or products, for a period of at most 5 (five) years, provided that such determination shall not apply to:

a. an invention which at that time has obtained or been granted a patent;

b. an invention which at the time of issuance of the Presidential Decision has applied for a patent on the basis of a priority right.

(2) After the expiration of the period of postponement referred to in paragraph (1), the patent application shall directly be announced and a substantive examination be carried out after the expiration of the period of announcement as provided by this Act.

 

Part Three: Duration of Patents

 

Article 9

(1) A patent shall be granted for a period of 20 (twenty) years commencing on the date of filing of patent application.

(2) The date of commencement and expiry of a patent shall be recorded in the General Register of Patents and announced in the Official Patent Gazette.

 

Article 10

A Simple Patent shall be granted for a period of 10 (ten) years commencing on the date of issuance of the Simple Patent Certificate.

 

Part Four: Patent Subjects

 

Article 11

(1) The inventor or a subsequent recipient of the rights of the inventor shall be entitled to obtain a patent.

(2) If an invention is produced jointly by several persons, subsequent recipients of their rights shall be jointly entitled to the invention.

 

Article 12

(1) Unless proven otherwise, those persons who first submit a patent application shall be deemed to be the inventor.

(2) A patent shall not be granted to those persons who submit a patent application referred to in paragraph (1) if the application contains copied material taken from a description and or drawing regarding the invention of another person for which a patent has been requested or granted.

 

Article 13

(1) Unless agreed otherwise in an employment contract, the person entitled to obtain a patent on an invention produced shall be the person who has commissioned the work.

(2) The provision referred to in paragraph (1) shall also be applicable to an invention by an employee or a worker using data and facilities available in his work even though the employment contract does not require him to produce an invention.

(3) An inventor referred to in paragraph (1) and paragraph (2) shall be entitled to receive just compensation based on the economic benefit that can be obtained from said invention.

(4) The amount of compensation referred to in paragraph (3) may be paid:

(a) in a lump sum; or

(b) as a percentage; or

(c) as a combination or a lump sum together with a gift or bonus; or

(d) a combination of percentage with a gift or bonus, the amount to be mutually agreed on 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 local District Court may be requested to decide the matter.

(6) The provisions 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 14

(1) A person implementing an invention at the time a patent on a similar invention has been applied for, shall continue to have the right to implement the invention as the prior inventor, even though a patent is subsequently granted for said similar invention.

(2) The provision referred to in paragraph (1) shall also apply to a patent application filed on the basis of a priority right.

 

Article 15

The provision referred to in Article 14 shall not apply if the person implementing said invention implemented it by using knowledge of said invention from a description, drawing, sample of or other information on the invention for which a patent has been requested.

 

Article 16

(1) A person implementing an invention referred to in Article 14 may be recognised as the prior inventor, if, after a patent has been granted for the similar invention, he submits a request to the Patent Office for this purpose.

 

(2) An application for recognition as a prior inventor shall be accompanied by evidence that the implementation 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) Recognition as prior inventor shall be issued by the Patent Office in the form of a Prior Inventor Certificate upon payment of a fee therefor.

(4) A Prior Inventor Certificate shall expire at the same time as the expiry of the patent for said similar invention.

 

Part Five: Rights and Obligations of Patent Holder

 

Article 17

(1) A Patent Holder shall have the exclusive right to exploit his patent, and prohibit any other person who without his consent:

a. in the case of product patent: makes, sells, imports, rents out, delivers, uses, 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 referred to in point a.

(2) In the case of process patent; such prohibition against any other person who without his consent commits the importation referred to in paragraph (1) shall only apply to imported products solely produced from the use of the pertinent process patent.

 

Article 18

(1) A Patent Holder shall be obliged to implement his patent within the territory of the Republic of Indonesia.

(2) It shall be precluded from the obligation referred to in paragraph (1), if the implementation of such patent, upon economic consideration, is only appropriate to be carried out in a regional scale.

(3) The exemption provided in paragraph (2) shall only be approved by the Patent Office if a written application is filed the Patent Holder, furnished with considerations and evidence given by the authorised Government offices.

(4) Requirements for the exemption and procedures of submitting a written application referred to in paragraph (3) shall be further regulated in a Government Regulation.

 

Article 19

For purposes of maintaining the validity of a patent and the recording of licenses, the Patent Holder or Licensee must pay maintenance fees referred to as annual fees.

 

Part Six: Exceptions to Patent Implementation and Infringement

 

Article 20

The importation of patented products or products made by a patented production process shall not constitute patent implementation.

 

Article 21

In the case of the importation of a product made by using a process protected under this Law, the Patent Holder of the said patented process shall have the rights as provided for in Article 17 paragraph (2) to implement a legal effort on the imported product if said product was made in Indonesia by using the patented process.

 

Article 22

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