Answer ... Patent infringement occurs when a party violates the rights of a patent holder as set out in question 2.1.
Answer ... The Patent Law does not recognise the doctrine of equivalents. Article 59, paragraph (2) of the Patent Law specifically stipulates that the protection of the scope of rights over a granted patent is determined based on the invention described in the relevant claim.
Answer ... One of the rights of a patent holder is the right to prohibit any unauthorised party from importing its patented products. If a product is imported into Indonesia and the process for producing the product has been patented in Indonesia, the patent holder may take legal action against the importer if such products have already been made in Indonesia using the patented process.
An exception to this provision concerns the import of pharmaceutical products that have been patented in Indonesia, provided that such pharmaceutical products are imported in accordance with the prevailing import laws and regulations.
Answer ... The Patent Law includes no standards for wilful infringement. However, Article 143 of the Patent Law stipulates that a patent holder or its licensee has the right to file a compensation claim with the commercial court against any unauthorised party that wilfully infringes its patent as outlined in question 6.1.
A common practice in Indonesia is for the patent holder to send a warning/demand letter to notify the alleged infringer that it is infringing the patent holder’s rights. If the infringer had no previous knowledge that the relevant patent has been registered, the warning/demand letter will be deemed to have properly informed it of such infringement. If the infringer continues the infringement notwithstanding, it will be considered to be wilfully infringing the patent.
Answer ... The patent holder or its licensee can file an infringement report to the police, which will be followed by a criminal claim to the district court if the police investigation reveals an infringement, or file a compensation claim with the commercial court against any party that deliberately conducts any of the actions mentioned in question 6.1 without permission.
However, a licensee may act against an infringement only if the relevant licence agreement has been recorded with the DGIP. If the licence agreement has not been recorded with the DGIP, it will have no legal effect against third parties and as such, the licensee will be unable to act on behalf of the licensor against an infringement of the relevant patent.
Answer ... The Patent Law prescribes no time limit for filing a patent infringement or compensation claim. In practice, once a patent holder or its licensee discovers that the patent is being infringed, it may immediately take any legal action, including issuing a cease and desist letter to the infringing party. The patent holder or its licensee may then file a claim with the commercial court and/or make a police report if the infringer denies or ignores the cease and desist letter.
Answer ... There is no specific provision regarding the pleading standard to initiate a claim at the criminal and/or civil court, including the commercial court. However, based on common practice that has been accepted and applied by the courts in Indonesia, a claim must include at least the following:
- the name of the competent court with jurisdiction over the infringement claim;
- the date of the claim;
- the name of the plaintiff and its representative (if a legal entity), ID number (if an individual), place of residence/domicile, and name and address of its proxy/lawyer (if applicable);
- the name of the defendant and its representative (if a legal entity), ID number (if an individual), place of residence/domicile, and name and address of its proxy/lawyer (if applicable);
- the facts constituting the cause of the claim and the legal grounds on which the claim is based;
- the relief/demand sought by the plaintiff; and
- additional claims (eg, an injunction), if any.
Answer ... A patent infringement action may be filed at the following forums.
District court: In this regard, a patent holder or its licensee must first file a report with the police/civil servant investigator, who will then investigate the alleged infringement. The resulting investigation report will be handed over to the public prosecutor. Once the public prosecutor has confirmed that the investigation report is complete, he or she will then draft the relevant indictment and submit it to the relevant district court with jurisdiction over the alleged infringement.
Commercial court: In this regard, the patent holder or its licensee may directly file a compensation claim based on infringement of its patent with the commercial court.
Answer ... An infringement report may be filed at the police station with jurisdiction over the area in which the infringement occurs. If the infringement occurs in multiple areas within the territory of Indonesia, the patent holder may file a report with the Criminal Investigation Department at the National Police Headquarters.
Under the Patent Law, a compensation claim must be submitted to the commercial court with jurisdiction over the domicile of the defendant. If one of the parties is domiciled outside Indonesia, then the compensation claim must be submitted to the commercial court at the Central Jakarta District Court.
Answer ... There is no jury system in Indonesia. Therefore, the fact finder in an infringement action will be the panel of judges at the commercial or district court.
Answer ... Each court in Indonesia has its own dedicated judges assigned by the relevant authority and therefore the court will have a different board of judges which will act as fact finder for each specific case.
Answer ... The first step is for the patent holder to investigate and analyse the alleged infringement. Upon confirming that its patent is being infringed, the patent holder will usually send a cease and desist letter to the alleged infringer, ordering it to stop the use and commercialisation of the patent holder’s registered and active patent.
Although a cease and desist letter is not mandatory, it is necessary to inform the infringer that it is infringing the patent holder’s rights. The letter may also be used as evidence, because it constitutes evidence that the infringer has been informed of its wrongdoing. If the alleged infringer continues the infringement against the patent holder’s rights, a cease and desist letter will help to establish the element of “deliberate action”, as stipulated in the Patent Law, for the patent holder to file a police report or a compensation claim with the commercial court.
Answer ... A patent holder may file a claim for compensation and/or an injunction with the commercial court in case of infringement of its patent.
Answer ... Yes, a decision of the commercial court may be appealed before the Supreme Court.
Article 30(1) of Law No. 5 of 2004 on the Supreme Court sets out the grounds for appeal to the Supreme Court as follows:
- The commercial court did not have authority to hear the case or exceeded its authority in trying the case;
- The panel of judges at the commercial court wrongfully implemented the prevailing laws and regulations in issuing its decision; or
- The commercial court failed to fulfil the conditions stipulated under the prevailing laws and regulations in a way that may invalidate its decision.