Indonesian Patent Law

Question 1
Does Indonesian law follow the common laws (England… based on precedents) OR does it follow the German / European Patent Office (EPO) style statutory law OR constitutional law (US)?

Answer 1
Indonesia adopts the Civil Law which refers to the applicable law currently exist and therefore we can say that Indonesia follow the statutory law. The jurisprudence will be of persuasive value but not binding.

Question 2
What is the likelihood that EPO objections to granting a patent will be upheld in Indonesia? Can we argue based on EPO objections? Will our case be strong?

Answer 2
EPO objections can be used as an argument before the court. However the expert’s opinion and the evidence will also be the important consideration for the judge in making the decision.

Question 3
In particular, the EPO has a “problem solution approach” to patents. Have you heard of this in your classes? Do you know if Indonesia will follow the EPO on this one? You can google “problem-solution approach”. It’s very big in European Patent Law. Will Indonesia follow this argument?

Answer 3

Yes, Indonesian Examiner also apply the “problem solution approach” in evaluating the inventive step of an invention, which contain of 3 (three) steps:
- Determining the closest prior art
- Formulating technical problems to be solved
- Considering the obviousness based on the above closest prior art and technical problems to
be solved.

Question 4
If there are A+B+C in a parent application, will Indonesia accept A+C only in divisional? The EPO rejected A+C. They said B is an essential feature defined in the earlier application. Therefore A+C goes beyond the scope of the parent application.

Answer 4
For the above case, the Indonesian Examiner will also have the same opinion with the EPO for not accepting the A+C in the divisional, with the reason that the invention become too general, no more specific features and therefore prior art can be cited. The granting is for specific technical features A+B+C and it will not patentable when the feature is only A+B or A+C or B+C which has less specific technical features and that the invention is too general. In patent, we aware that specialty beat generality. However, please note that under current practice the above is not binding but still debatable.

Question 5
If the specific benefit of a feature X is not stated specifically in a prior art specification, but the technical effect is achieved by working this prior art invention, does that prevent a new applicant from trying to patent X, the only difference being that the new applicant said “my invention performs X”?
-The EPO’s view is that X is inherent in the working of the prior art invention anyway. So even if they didn’t exactly spell out “our invention performs X”, the benefits are achieved.
-So they rejected the new application (by another person) in which the new applicant claimed the same thing as the prior art, only this time, he spelt out the benefits of X.
-Will Indonesia follow EPO?

Answer 5
As mentioned in question no. 3 that Indonesia also apply “problem solving approach”, therefore Indonesia also follow EPO in determining a prior art. Though it is not literally mentioned in the prior art but if a person skilled in the art can constitute the obviousness of the invention then it will be considered as a prior art. Please refer to Article 2 paragraph (3) of Patent Law No. 14 of 2001.