The Importance of Patent Registration by Inventors

An invention can be granted a patent if the invention is new and contains inventive steps that can be applied in industry and the invention does not conflict with legal regulations, public order and morality. Patents cannot be granted if the making of the invention involves humans or animals in the process of examination, treatment and surgery.

Patent registration is a necessity to assess whether the patent meets the criteria that have been determined. According to the Patent Law, an invention that can receive patent protection must have the following characteristics: novelty, which means that the invention is not the same as any technology that has been disclosed previously, inventive steps, when this is not obvious to a person with certain technical skills in the field, given the knowledge available at the time of its application, and industrial application in the patent application.

The filing of patent applications in Indonesia applies the principle of first to file, namely patent rights are only granted to the first applicant who files their patent and has obtained a receipt date (filing date). Filing an application through the Directorate General of Intellectual Property (DGIP) and if it meets the existing requirements and has passed the substantive examination process and the submission of the application therein, it will be declared granted. Thus, other parties can have a monopoly right to profit from the existence of a patent certificate, provided that they must obtain prior permission and approval for the provision of remuneration (royalty) periodically to the inventor who has registered it.

Announcement of Simple Patent Application

For simple patents, the announcement is made no later than three months from the filing date. During the announcement period, the public has the right to submit written objections to the Director General of Intellectual Property if it is found that an invention does not meet the requirements for patenting.

However, specifically, in Article 85A paragraphs (1) and (2) of Permenkumham Number 13 of 2021, it is regulated that "the announcement of a simple patent application is carried out no later than fourteen days from the date of receipt of the simple patent application and the announcement is carried out for fourteen days from the date of announcement." Then, in Article 123 paragraphs (1) and (2) of the Job Creation Law, it also affirms the same thing, namely that the announcement is made within fourteen days from the date of application, so that it can facilitate inventors or business actors in their efforts to register their inventions.

In addition, simple patents in Pemenkumham Number 69 of 2016 regulate the procedures for granting and examining simple patent applications which are also applied especially among small and medium communities who have limited access to intellectual property rights protection to be able to encourage collaboration between Micro, Small and Medium Enterprises and large industrial companies.

An invention can be classified as a simple patent because the invention does not go through an in-depth research and development process. Not all inventions have the opportunity to obtain patent protection because there are several exceptions, both absolute and limited. Absolute exceptions are knowledge that the production process or product is contrary to applicable laws and regulations, religious morality, public order, or morality, the discovery of theories and techniques in the fields of mathematics and science, the discovery of examination, treatment, medical treatment, and or surgery techniques used on animals and humans, inventions relating to living things other than microorganisms, inventions regarding biological processes except non-biological or microbiological processes necessary to produce plants or animals.

Intellectual Property Rights legal policy in Indonesia is limited so as not to lead to accommodation of liberal values and unlimited freedom. In addition to moral and propriety constraints, the Patent Law rejects technological inventions that conflict with society. This norm is actually universal and is a general legal principle.

If a person who is skilled in the field of the claimed invention or a person who has knowledge in the field of the invention but is able to prove it logically, then the inventive step in the claimed invention will be rejected, and conversely if a person who is skilled in the field of the claimed invention cannot prove it logically, thus the inventive step in the claimed invention is accepted.

Article 3 paragraph (2) of the Patent Law clearly regulates that "simple patent protection is given to new inventions and regarding the elements that must be fulfilled in order for an invention to be given simple patent protection, namely a new invention, development of an existing product or process, and can be applied in industry." The requirements for simple patent protection are absolute requirements (absolute grounds) which means that in order for an invention to be granted simple patent protection, all of these elements must be fulfilled.

One of the requirements that must be fulfilled to provide simple patent protection for an invention is that the invention must be new or contain an element of novelty (novelty). The provisions of Article 5 paragraphs (1) and (2) of the Patent Law explain the level of novelty of an invention seen from the date of its receipt, and the invention in question must not be the same as the technology disclosed previously.

An inventor has the same position as a patent holder, but generally inventors sell their inventions to investors who then become patent holders. As a manifestation of protection, the inventor's name as the party who produced the invention is still included in the patent certificate as a manifestation of moral rights, namely rights inherent in the inventor even though ownership of the invention has been transferred to another party.

Application for Simple Patent Registration as an Effort to Protect Patent Rights

According to the explanation in the Patent Law, software or application forms are subjects of patent protection. The requirement is that the program or application has a technological effect and function that produces a solution. Basically, software or programs that have technical and functional impacts are visible in the business process, starting from input, processing, and output.

In this case, the patent registration application is submitted after understanding the characteristics of the public service application. The applicant is the inventor and the government agency that is directly related in the context of the patent registration application, as stated in the provisions of Article 13 paragraph (1) of the Patent Law which states: “The Patent Holder for an Invention produced by an Inventor who has an official relationship with a government agency is the government agency and the Inventor, unless otherwise agreed.” Based on these provisions, if the state grants the patent application through the Director General of Intellectual Property, the inventor and the government agency jointly own the patent.

By submitting a patent application, the inventor obtains state protection for a certain period of time. Protection can take the form of supervision and monitoring of the inventions being developed to ensure that unauthorized parties do not misuse them. In addition to protection, inventors are also given the option to recover their investment in the inventions they create within a certain period of time.

Settlement of Patent Rights Disputes

One aspect of special rights in a simple patent is economic rights. Economic rights are the exclusive rights of simple patent holders in order to obtain financial benefits from their inventions. It is called economic rights because intellectual property is an intangible object that can be valued with money. These economic rights take the form of a sum of money obtained due to the use of intellectual property or the services of other parties based on permission.

A special consideration for granting patent rights is to reward inventors for the efforts and investments they have made in their inventions. The ideal principle of patent protection is the same as other IPR protection as long as it is all intended to protect someone who finds something so that their ideas and work are not simply used by other people and enjoy the results as a result of their hard work, thinking, and spending costs to obtain them.

As the economic and trade aspects develop, especially in the era of free trade, IPR disputes arise which result in economic rights losses. Based on Article 153 of the Patent Law, disputes or disputes can be resolved through two channels, namely litigation and non-litigation. Litigation is the settlement of disputes in court. Settlement of related disputes through litigation involves filing a lawsuit with the Commercial Court. Meanwhile, non-litigation is the settlement of disputes through Alternative Dispute Resolution, namely negotiation, mediation, conciliation, and arbitration.

References

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