Indonesia has made changes to its Law No. 11 Year 2020 on Jobs Creations or known as Omnibus Law as the President of the Republic of Indonesia, Joko Widodo has officially signed the amendment in November 2020. This amendment that aimed to encourage job creation in Indonesia has also affected the Patent Law No. 13 of 2016 (“the Patent Law”) and Law No. 20 Year 2016 on Marks and Geographical Indications (“the Trademark Law”).
The main amendments to the Patent Law comprises of working requirements, compulsory licensing and simple patents that are discussed in depth below.
Under the working requirements, now there are several methods in which a patent can be recognized in Indonesia. This includes product patents whereby it involves making, importing, or licensing a patented product; process patents whereby it involves making, licensing, or importing products resulting from a patented process and method patents whereby it involves making, importing, or licensing products resulting from the patented method, system, and use.
As for the changes in the compulsory licensing, Article 82 of the Patent Law has been amended whereby if an invention is not in use or no longer working, any third party has the liberty to file an application for a compulsory license thirty-six months after the date of grant. This license is granted by the Ministerial Decree not only for cases mentioned above but also to a patent that has been used by the patent holder that is detrimental to the public interest.
Article 3 of the Patent Law has been revised whereby a simple patent can be granted for any invention which is a novel development from an existing product or process having practical uses that can be applied in industry and this formula “a simple product, a simple process, or a simple method” applies. This amendment however is still vague and unclear, and it is subject to further direction from the law makers of Indonesia.
Besides that, Article 123 and 124 of the Patent Law stated that publication of the simple patent application shall be done not later than 14 days from the date of filing of the simple patent application. The Substantive Examination will then be conducted after the publication period has ended. During the Substantive Examination period, an opposition against the application will be used as the determining factor in granting the application or otherwise. Minister shall issue a decision to grant or reject the simple patent application not later than 6 months from the date of the application. The simple patent application once granted shall be recorded and published via electronic or non-electronic media and Simple Patent Certificate will be issued by the Minister to the patent holder as proof of ownership.
The most notable changes in the Trademark Law include the functional 3D mark is no longer can be registered and recognized in Indonesia. The newest Article 20 of the Trademark Law stated that a mark cannot be registered if it is contrary to the state ideology, prevailing laws and regulations; if the mark is the same, related to the goods and/or services covered in the application; if it contains a misleading element; if the mark contains inaccurate information; if the mark lacks of distinguishing elements; if the mark is common with regards to its name or symbol; or if the mark contains a shape that is functional.
The amended Article 23 of the Trademark Law has shorten the Substantive Examination period from 150 working days to 30 days subject to no opposition. If there is any opposition from any third party, the Substantive Examination shall be 90 days.