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Legislative Implementation of Flexibilities - Indonesia

Title:Articles 74-77, 79 and 99-103 of the Patent Law No. 14 of 01/08/2001
Field of IP:Patents
Type of flexibility:Compulsory licenses and government use
Summary table:PDF

Provisions of Law

Article 74

A compulsory license shall mean a License to implement a Patent that is granted based on a decision of the Directorate General based on an Application.

Article 75

(1) Any party, after the expiration of a period of 36 (thirty six) months commencing from the date of grant of a Patent, may file a request for a Compulsory License at the Directorate General, with the payment of a fee.

(2) A request for a Compulsory License as referred to in paragraph (1) shall only be made on the grounds that the relevant Patent has not been implemented or only partially implemented by the Patent holder.

(3) A request for a Compulsory License may also be filed at any time after the grant of Patent on the grounds that the relevant Patent has been implemented by the Patent Holder or the licensee in a form and manner that contravenes the public interest.

Article 76

(1) In addition to the truth of grounds as referred to in Article 75 paragraph (2), a Compulsory License may only be granted if:

a) the person filing the request can provide convincing evidence that he:

has the ability to personally and fully implement the relevant Patent;

has his own facilities to readily implement of the relevant Patent;

has made efforts in a sufficient period of time to acquire a License from the Patent Holder on the basis of normal terms and conditions but did not succeed.

b) the Directorate General is of the opinion that relevant Patent can be implemented in

Indonesia on a feasible economic scale and can be of benefit to the majority of the society.

(2) The examination of a request for a compulsory license shall be carried out by the Directorate General by hearing the opinion of other related government agencies and parties, as well as the relevant 'Patent Holder.

(3) A Compulsory License shall be granted for a period no longer than the period of Patent protection.

Article 77

If, based on the evidence and opinions as referred to in Article 76, the Directorate General is convinced that the period as referred to in Article 75 paragraph (1) is insufficient for the Patent Holder to commercially implement the Patent in Indonesia, or within a regional scope as referred to in Article 17 paragraph (2), it may stipulate to temporarily postpone the decision to grant a Compulsory License or to refuse to grant one.

Article 79

The decision of the Directorate General regarding the grant of a Compulsory License shall include the followings:

a) that the Compulsory License shall be non-exclusive;

b) the grounds for granting of the Compulsory License;

c) evidence, including convincing information or explanations, which form the basis for the granting of the Compulsory License;

d) the period of the Compulsory License;

e) the amount of royalties to be paid by the compulsory licensee to the Patent Holder and the method of payment therefore;

f) conditions on the termination of the Compulsory License and matters, which may cause revocation of the Compulsory License;

g) that the Compulsory License will be primarily used to supply the demand in the national market.

h) other matters necessary to fairly protect the interest of the parties concerned.

Article 99

(1) If the Government is of the opinion that a Patent in Indonesia is very important for the conduct of defense and security of the State and for an urgent need for the sake of public interest, the Government may itself exploit the relevant Patent.

(2) The decision to self-exploit a Patent shall be regulated by Presidential Decree after hearing the consideration from the Minister and from the minister or head of the agencies responsible in the relevant field.

Article 100

(1) The provisions of Article 99 shall apply mutatis mutandis to any Invention for which a Patent has been requested but which has not been announced as referred to in Article 46.

(2) Where the Government does not or has not yet intended to self-exploit a Patent as referred to in paragraph (1), the exploitation of such a Patent may only be undertaken with an approval from the Government.

(3) The Patent Holder as referred to in paragraph (2) shall be released from the obligation to pay the annual fees until the relevant Patent is exploited.

Article 101

(1) Where the Government intends to self-exploit a Patent that is important to the conduct of defense and security of the State and for an urgent need for the sake of public interest, the Government shall notify the Patent Holder in writing of this fact by setting forth:

a) the title and number of the relevant Patent as well as the name of Patent Holder;

b) reasoning;

c) the period of exploitation;

d) other matters that are deemed significant.

(2) The exploitation of a Patent by the Government shall be carried out with the provision of reasonable compensation to the Patent Holder.

Article 102

(1) The decision of the Government to self-exploit a Patent shall be final.

(2) Where the Patent Holder does not agree with the amount of compensation stipulated by the Government, he may file objections as a lawsuit to the Commercial Court.

(3) The process of examining the lawsuit as referred to in paragraph (2) shall not stop the exploitation of the relevant Patent by the Government.

Article 103

Provisions regarding the procedure of exploitation of Patent by the Government shall be further regulated by Government Regulation.

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