General Overview of the Third Amendment of Patent Law
Following Indonesia’s participation in the World Intellectual Property Organization (“WIPO”) Treaty on Intellectual Property, Genetic Resources, and Associated Traditional Knowledge (“WIPO Treaty”) on 8 July 2024, Indonesia passed Law No. 65 of 2024 on the Third Amendment of Law No. 13 of 2016 on Patent (“Patent Law”). The amendment is to conform with WIPO Treaty, as the main objectives of this treaty are to enhance the patent system regarding genetic resources and traditional knowledge (“GRATK”), as well as to prevent patents from being granted to inventions that are not novel or inventive with regard to GRATK. Moreover, the previous law did not provide a detailed framework of GRATK though the law already recognized the concept.
In this article, we provide an overview of the amendment of Patent Law, particularly the: (i) Invention and Patentable Inventions, (ii) Provision and Protection of GRATK. (iii) Extension of Grace Period, (iv) Patent Administrative Process, and (v) Concluding Remarks.
Invention and Patentable Inventions
The amendment expands the definition of “invention” to include systems, methods, and applications in addition to products and processes (Article 1 number (2) of Patent Law). This addition allows the patenting of a broader scope of technological innovations.
Since the computer program cannot be patented, the software integrated into a technological process or system can qualify for patent protection (Article 4 of Patent Law). This clarifies the distinction between non-patentable software and patentable technology, whereby nonpatentable software remains subject to copyright protection instead. It also encourages innovation in software-driven technological solutions, while maintaining the traditional treatment of standalone software as a non-patentable object.
In this regard, software development companies now have the potential to secure patents for the software embedded in processes or systems.
Provision and Protection of GRATK
As this New Patent Law is a conformity to WIPO Treaty, this regulation has introduced a new definition regarding the ‘Traditional Knowledge’ and ‘Genetic Resources’ or GRATK (Article 1 number (18) and (19) of Patent Law).
a. Traditional Knowledge: Ideas and concepts rooted in local values, which are continuously developed and passed on through generations.
b. Genetic Resources: Genetic materials from plants, animals, or microorganisms containing hereditary traits with potential value.
Any patent application involving GRATK should be enclosed with a statement of origin. Failure to disclose such statement may result in the patent revocation (Article 25 (2) of Patent Law). Once the patent application has been approved by the Ministry of Law (“MoL”), the patent and origin must be publicly announced (Article 48 (2) of Patent Law).
These requirements safeguard the equitable sharing of benefits derived from GRATK, and they can be utilized by Indigenous communities to gain recognition for their contributions.
Extension of the Grace Period
In this amendment, the grace period for filing patent applications is extended from 6 to 12 months. Please note that an invention is eligible for the said grace period after it fulfils the following criteria:
(a) It has been displayed in an official exhibition;
(b) It has been used by the inventor in research and development experiments; and/or
(c) It is disclosed by its inventor in an academic session or a scientific forum for educational
purposes.
In other words, the inventors may publicly disclose their inventions within 12 months without forfeiting their patent rights, provided that the disclosure fulfills one of the above criteria. It seems that startups and research institutions may particularly benefit from this amendment, as they often require public exposure for funding and validation.
Patent Administrative Process
In this amendment, several administrative changes have been introduced. They are:
- Additional Fee for Excessisve Patent Application: Before the amendment, the number of patent applications requested by the investors were not limited. On this amendment, the law limits the number of patent applications to 10 patent claims in one application with additional fees for exceeding the limits (Article 24 of New Patent Law)
- Mandatory Language: The amendment introduces the mandatory language for patent applications. A patent application shall be made in Bahasa Indonesia or dual language. The translation of the description of the patented object shall be submitted within 30 days after the application has been completed and recorded by MoL (Article 34 (3a) of Patent Law).
Moreover, the amendment introduces the possibility for applicants to expedite the processing of their applications. Early publication is now possible within three months from the filing date, and applicants can request early examination, provided the request is made before publication begins. (Article 46 of Patent Law).
Concluding Remarks
The amendments to Indonesia's Patent Law, aligning with the WIPO Treaty, bring significant changes to businesses. By broadening the definition of "invention" to include systems and methods, and enabling patents of software integrated into processes, the government has supported innovation in technology and software development by including them as patentable objects under this amendment. With an extended 12-month grace period and ease of administrative processes that include early publication and expedited examination, the amendments provide businesses, startups, and research institutions with flexibility in protecting their inventions. These changes are expected to make Indonesia more attractive for innovation, technology, and investment.
The article above was prepared by Audria Putri (Senior Associate), Mia Sari (Senior Associate), and M. Irfan Yusuf (Associate).
