Indonesia officially enacted Law No. 11 of year 2020, commonly known as the Omnibus Law, on 2 November 2020. The Omnibus Law contains revisions to multiple laws, including patent and trademark laws.
The major changes to the Indonesian patent law are as follows.
“Simple patent” – commonly known as a utility model, petty patent or innovation patent in other jurisdictions. The law has been amended to explicitly define a simple patent. Previously, a simple patent could be granted to every new invention or development of an existing product / process which is industrially applicable. There is now a further definition in that the development of the existing product / process can include “a simple product, a simple process, or a simple method”. At this juncture, it is unclear how the further definition will materially affect prosecution of simple patents. It appears that the further definition might suggest that it is easier for simple patents to be granted as compared to before.
“Working requirement” – initially, there were plans to remove the working requirement provisions and many practioners welcomed this change. However, at the last minute, a decision was made to keep the working requirement provisions but with some changes. Specifically, acts of using, manufacturing, importing, or licensing will be considered working the invention. Previously, only acts of using or manufacturing were considered working the invention.
Furthermore, patent owners can submit a written request to postpone fulfilment of the working requirement. If approved, a postponement period of a maximum of five years may be granted. Seeking further postponement (i.e. beyond the maximum period of five years) may also be possible, citing valid reason(s). The request for postponement has to be filed within 3 years from grant of the patent. There are transition provisions which allow patent owners with patents granted before 9 December 2019 to file a request for postponement by 8 December 2022.
“Compulsory licensing” – Consistent with the changes to the working requirement provisions mentioned above, if an invention is not worked (i.e. the patent owner does not use, manufacture, import, or license a product / process covered by the patent) within thirty six months after grant, a third party can file an application for a compulsory license. In the past, a third party could file an application for a compulsory license if the patent owner does not manufacture products or use processes covered by the patent within thirty six months after grant. In other words, it is now possible to avoid compulsory licensing by importing a product or licensing a product / process.
There are two major changes to the trademark law – (i) a trademark cannot be registered if it contains shapes/forms that relate to a functional purpose and (ii) the substantive examination period has been significantly reduced from 150 days to 30 days, which should result in faster prosecution and grant of trademarks.