Preventing Patent Abuse
August 2018 will mark the period of 17 years of patent regulation in Indonesia which was first regulated through Law No. 14/2001 and then revised with Law No. 13/2016 on Patents which was also enacted in August. Both laws are to provide intellectual property rights protection (IPR) of inventors and creators, so as to encourage the national invention spirit.
In the development of technology and business, there are two aspects that often become legal problems in terms of patent, that is the protection of intellectual property rights and misuse of intellectual property that is contrary to fair business competition. Intellectual protection not only speaks of the protection of intellectual creations as a property right but also the accountability to the intellectual and the material (liability).
Basically, intellectual property rights including patents are exclusive rights of creators or inventors not to be exploited by other parties. However, that does not mean that the right is an effort to monopolize the market from other inventions.
Therefore, the legal system of intellectual property that regulates patents should maintain that balance. It is not a means of an irresponsible businessman to obtain rights against the law (fraud) and using it unlawfully (abuse).
So the patent requirement on an invention must meet the requirements of novelty, inventive step and can be applied in the industry. Inventions that are patent-worthy are inventions that are proven to have certain useful values or useful / utility because they are proven to be the result of certain problem-solving activities.
If an actual invention does not qualify but it still obtains a patent, it can be classified as patent fraud, and the right of protection shall be null and void. Generally, fraudulent inventors will accuse other parties of violating patents and suing (sham litigation) with the aim of being the market ruler.
They will report to the authorities to stop the activities of competitors and attempt to exploit competitors on these allegations. This can certainly turn off business competition and a conducive business climate and ultimately will only create a mafia or intellectual thuggery in the market.
Interestingly, the majority of patent cases that were decided by the Supreme Court (MA) more reflect the patent revocation lawsuit. The Supreme Court’s special civil directory recorded 27 cases of patent disputes brought to the cassation or PK level after previously being processed in various commercial courts. Patent cases that went to MA until mid-2018 are far less than other intellectual property rights cases such as trademarks (526 cases), copyright (106 cases), and industrial design (66 cases).
In the context of patents, cases are found when the defendant is forced to file a lawsuit for the revocation or cancellation of a simple patent of a local inventor, which should not be granted a patent.
From the start, it should be a concern if there is a patent application which is a partial development of a device system technology that is quite complex. If the substantive examination process is not conducted carefully, a minor improvement of a small part of a large system component may be claimed as an invention and applied for a patent.
In fact, it does not meet the requirements of novelty, inventive steps, or usefulness. Moreover, if it turns out the product has already been on the market before. Fortunately, the Supreme Court has granted many revocation cases like such cases.
Fixing the system
Because giving a patent to an invention that is not feasible can be a hassle for the business world. Manufacturers or distributors of technological products are threatened to be unable to run their business and even lost customers because they were sued for infringing the patent. The technology products that they carry and have patented in their home countries can suddenly be sued because they are deemed to violate patents in Indonesia.
It is no exaggeration if the Directorate General of Intellectual Property needs to review the substantive examination process which is more stringent in determining the worthiness of an invention to obtain patent protection. Similarly, technical guidance of substantive examination should also be published as accountability commitment of Directorate General of Intellectual Property.
Ideally, each concerned party must be facilitated to find out about the unworthiness of a patent application and immediately be able to submit opposition.
Unfortunately, on the other hand the conditions are different. It is a fact that not all concerned parties can actively or have the resources to monitor information and observe patent publications that could pose risks in the future. Civil society related to intellectual property seems to be more active in monitoring such things.
The above improvements will be better if supported by a more stringent supervision system, especially on communication between patent examiner and patent applicant. This is all to strengthen accountability and prevent suspicion in the community. Of course rewards and punishment need to be improved to prevent the passing of unqualified patents.
Finally, it is important to quote a proverb in the monetary world that reads, bad money drives out good money. If we are unable to prevent the emergence of bad things, good things will be pushed away.
Patent law that is expected to have a positive impact can be negative for national industry growth and fair business competition if not implemented firmly.
Dr. Edmon Makarim, S.Kom., SH, LL.M.
Lecturer and Researcher of Telematics Law and Intellectual Property Law, Faculty of Law, Universitas Indonesia
This article was published at http://analisis.kontan.co.id/news/mencegah-penyalahgunaan-paten
