Patents: when to file for patent rights over your inventions

  • By:Kelvin Wibawa
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Among all intellectual property matters, patent cases are often regarded as being the most complex ones. This makes sense given the difficulties in capturing the essence of what must actually be protected. While trademarks, for example, are often mere images, objects to be patented generally have a specific function and distinctive features that are hard to define. Therefore, even the basic question of which objects patent rights are suitable for is a rather complicated one.

The differences between patents and other forms of intellectual property rights

Though patents and trademarks or copyrights are easy to distinguish, registrations of industrial designs and patents appear to have a lot in common. Both aim to protect the use of a new design by its registrant. There is an essential difference between both types of registration though. WIPO, the global organization for intellectual property protection, summarizes this difference well by stating patent rights apply to designs offering technical solutions, while industrial design rights protect only a design’s aesthetic features.

Main criteria for an invention in order to be patentable

How ‘designs offering technical solutions’ are legally defined is specified in Law 13/2016 about Patents. It’s Article 4 lists down concepts that are not considered as being such ‘designs offering technical solutions’. Rules and schedules for business and games, for example, cannot be patented. The same goes for the mere finding and publication of information; these creations are often more suitable for legal protection under a copyright. Article 4 of the Patent Law also specifically mentions designs with aesthetic purposes as not being suitable for protection through patent registration. Article 9 mentions furthermore that theories and methods in the field of mathematics, science, and surgery are also excluded from patentability.

read also: How to patent a product in Indonesia

Applicability in industry

An important side note is that a patentable invention must be applicable in the modern-day industry as to how it has been designed, as is stated in Article 8 of the Patent Law. A good example of machines which are excluded from patentability due to this rule is the several existing plans for futuristic devices like time machines or spaceships. None of these apparatuses are patentable according to Indonesian patent law, simply because the ideas only exist on paper and cannot be realized with today’s technology and industrial capacity. Similarly, unique devices which are typically being built for scientific purposes can not be protected by establishing patent rights. CERN’S particle accelerator in the Swiss mountains is an example of such a uniquely designed device, which is not meant for industrial application and implementation into civil society.

When is an invention considered ‘new’?

The criteria mentioned in the previous paragraphs are however not everything. A first additional requirement from Article 5 of the Patent Law is that no same invention is already known at the time the application is filed. According to the same Article 5 such an invention is under normal circumstances considered ‘known’ if it has been announced in writing, through speech or by a demonstration, either in Indonesia or abroad. Secondly, the design and the item resulting from it must be new in itself, as can be concluded from Article 4 of the Patent Law. Finding a new application for an already existing product, therefore, is not patentable. If an invention comprises a chemical compound, it can only be patented if the practical use of this compound is arguably preferable over the use of already existing alternatives.

The required level of innovation

A final major requirement is the invention’s degree of innovation. According to Article 7 of the Patent Law, this is being measured by determining whether other experts in the relevant field could have designed the same concept with relative ease. If it is considered logical other professionals could come up with the same invention without putting much effort into it, the invention is deemed not unique and distinctive enough to be patented. In order to define if an invention has the needed level of distinctiveness,

The high concentration of words like ‘usually’, ‘generally’ and ‘under normal circumstances’ in this text already hints about the numerous exceptions in patent law. Explaining these exceptions would take more than one article, and which rules apply strongly varies from case to case. It is therefore highly recommended to consult a professional legal expert on any patent-related cases – or legal matters in general.

The right to a patent of an improvement is restricted to the improvement itself and does not include the process, machine, or article improved.

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