27 Apr 2020
Tim Slingschröder
Inventors who plan to have their domestically patented creations legally protected overseas sometimes discover another party already holds the rights over a similar invention in their targeted country. Though it does indeed occur someone else simply obtained a Patent over an invention earlier, in many cases the legal protection held by another over a ‘similar invention’ is in fact not a Patent.
Who takes a look at the Indonesian Patent Law sees that the country acknowledges two types of Patents. Article 2 of Law 13/2016 about Patents mentions ‘Patents’ and ‘Simple Patents’. The former one of the two is the ‘real’, basic Patent as it is known internationally. Article 1 of the Patent Law describes a Patent as ‘the exclusive right for an investor to use his invention’.
In order to be patentable, such an invention must be new, it results from knowledge and effort, and it offers a technological solution to a problem according to Articles 5-7 of the Patent Law. It differs from a ‘regular’ Patent in that the invention in question does not necessarily have to be an entirely new device in itself.
Article 3 of the Patent Indonesia Law states that Simple Patents can also apply to new improvements to already existing products or processes. It can, therefore, be said obtaining a Simple Patent requires less inventive as compared to acquiring a ‘full’ Patent.
As it appears to be easier to obtain a Simple Patent than a Patent, the former one seems to be the preferable choice. This is not always the case though. To begin with, a Simple Patent only grants its holder the exclusive rights over his invention for a period of ten years (Article 23 Patent Law). A Patent is valid for ten years (Article 22 Patent Law), meaning a Patent is especially interesting for those who invested a lot of money in creating their invention and who may want this extra time to earn back their investments.
Read Also: Patents : when to file for patent rights over your inventions
A second crucial difference has to do with the Patent ‘claim’ which can be defined as a detailed description of the invention and its functioning. A Simple Patent can only hold one such claim, while the number of claims which can be included in a Patent is theoretically unlimited.
Some other countries also have their own types of ‘Patents’, each of which with its own characteristics. A noticeable category is the ‘Design Patents’ from the United States. American Patent law divides Patents roughly into two categories; on one hand, there is the ‘Utility Patents’ which can only apply to new inventions that offer technological solutions to problems.
These Patents do not merely protect the product’s appearance, but in fact, grant its inventor the exclusive rights over the functioning over the invention (such as the machine or medicine). ‘Design Patents’ only protect the aesthetic aspects of such inventions and do not lead to any exclusive rights over the product’s functioning. Therefore, an American Design Patent is essentially the same as what is called a registered Industrial Design in Indonesia.
Laws and legal articles written in English furthermore sometimes mention a ‘Utility Model’, which’ definition comes close to that of the Indonesian Simple Patent. Utility Models are usually being applied for in case of new applications of, or additions to existing products, and grant their holders limited Patent rights. Utility Models go by many other names as well, such as ‘Innovation Patent’, ‘Minor Patent’ or ‘Short-term Patent’.
Another kind of Patent one sometimes stumbles upon while reading about Patents is the so-called ‘Plant Patent’. Plant Patents are also commonly known as ‘Plant Breeder’s Rights’, and in many countries – including Indonesia – have their own legislation. Just like Patents, Plant Patents can only be granted if the invention is new and has not been seen before. As the name suggests, the invention in the case of a Plant Patent is a type of plant with certain characteristics that results from the application of knowledge and research.
