Insights
Indonesia has two different rules on compulsory licensing. One relates to third-party compulsory licensing which implements the TRIPS Doha Declaration rules. The second is government licensing. This enables the Indonesian government to implement a patent themselves due to public interest or security and defence reasons.
Public interest government licensing is directed to 4 categories of public emergency - public health emergencies, agriculture and food resilience requirements, animal health emergencies or environmental or natural disasters.
The government can appoint third-parties to produce the patented product if needed. Such government implementation of a patent does not impair the patent holders exclusive rights. That means they can still implement the patent i.e. make a product themselves, and sue others for infringement. Patent holders are required to pay annual maintenance fees as normal.
An application procedure is set out. The IP office will review the government application especially to check that what they request comes within the scope of the granted patent. The patent holder will be notified. The DGIP will then set a license fee to be paid. This Regulation seems designed to support emergency Covid vaccine production if necessary. See the earlier concerns expressed here.
The other form of government license relates to defense technologies. Security can include technology, encryption and surveillance related subject matter. The government can appoint third-parties to produce the patented technology if needed. The patent holder may not then exercise his own exclusive rights and implement the patent. But conversely, patent annuity fees are reduced to zero. An application procedure is set out. The IP office will review the government application especially to check that what they request comes within the scope of the granted patent. The patent holder will be notified. The DGIP will then set a license fee to be paid.
The regulation also contains a set of rules relation to weapons technologies that conflict with Indonesia‘s defense and security. In essence it is prohibited to implement patents for these in the country without government approval.
