Patents: The Required Level of Secrecy of Inventions Around the World

  • By:Tim Slingschröder
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Although the Indonesian word ‘Paten’ clearly derives from the English term ‘Patent’, both words do not have the exact same meaning in a strictly juridical sense. Indonesian and British Patents slightly differ in the conditions to be met in order to receive protection, as well as in the specific rights included in such protection. A main difference between both is the level of secrecy an inventor has to maintain with regards to his new invention in order to be able to have it patented.

The reason for the necessity to maintain secrecy

The fact a Patent – according to Indonesian law – can only be granted to an invention which has been kept secret for other parties derives from the legal definition of a ‘new invention’. Article 1 of Law 13/2016 about Patents describes an ‘invention’ as an ‘idea for the solving of technological problems through products or processes’. Article 5 prescribes when such an invention is considered ‘new’; it can not have been perceived before, whether this be through physical demonstrations, written or oral descriptions or other means. Hereby it does not matter whether such public makings of the invention have been made in Indonesia or abroad.

Knowing the above, inventors must make sure they do not bring their invention out to the public if they intend to financially benefit from it. Any invention which has already been seen, or worse – which is already in use – becomes free for anyone to use without the original inventor being able to legally claim any financial reward. The Indonesian Patent Law provides a few exceptions to this rule in its Article 6, which states an invention is not deemed as being used before if such use took place in official exhibitions, trials or scientific works no longer than six months before the application for Patent Registration is being filed. In case the invention has been announced and the disclosing party broke an obligation or agreement by doing so, the period as described before is prolonged to twelve months. In international law such a period in which an invention is legally not considered disclosed if it has been made public is known as a ‘grace period’.

The application of grace periods around the world

As can be concluded from WIPO’s report ‘Certain Aspects of National/Regional Patent Laws’ from October 2019, all countries on earth maintain a certain level of secrecy as a criterion for an invention’s patentability. Virtually all nations also maintain a grace period as mentioned before. In such a grace period the disclosure of an invention is permitted without the loss of its patentability possibilities. The length of this period differs among countries though. As mentioned earlier, Indonesia normally applies a six-month grace period, as do China, South Korea and most European nations. A group of other countries has a grace period of twelve months, among which the United States, Japan and India. The United States maintain a noticeable provision in its patent law, which allows inventors to use or sell their inventions unlimitedly and still claim their Patent rights within a grace period of one year after its disclosure.

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