Understanding and Obtaining Patent Protection
By Ferianto, S.Si., M.H.
Often we read in the media or hear sentences that books are patented? Patented music? Patented dance? At first glance it looks right but it turns out that this understanding is wrong. Patents are a type of IPR protection that protects works in the technology sector. Objects other than technology cannot be patented. Patents are a branch of IPR that protects inventions or inventions in the field of technology where the technology offers solutions to technical problems that are better than previous technologies. The technology referred to in patent protection can be in the form of products (composition, formulation, systems, tools) as well as processes or methods (work steps). Another aspect that needs to be emphasized is that the invention to be patented must be superior in terms of its technical function.
Law Number 13 of 2016 has determined two types of patents, namely ordinary patents and simple patents. An ordinary patent is a patent that has gone through extensive research or development with more than one independent claim. Ordinary patents may cover inventions for products, processes, methods or developments of products/processes/methods. An invention can be classified as an ordinary patent if all three patent requirements are met. Meanwhile, simple patents in the new UUP experienced an expansion in the scope of protection where in the old UUP it only covered products in the form of tools that had practical functions, expanded into visible or invisible products/processes/methods as long as they met the requirements of novelty and could be applied in industry. Simple patents are usually patents that do not require in-depth research or development and only contain one independent claim and the technical function jumps horizontally.
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The requirements for an invention to be protected by a patent are contained in Article 5-8 of Law Number 13 of 2016, a patent is granted for a new invention (novelty), contains an inventive step and can be applied in industry (industrial applicable). Furthermore, the three conditions are explained as follows:
Based on Article 5 paragraph (1) of Law Number 13 of 2016 Concerning Patents, an invention is considered new in essence if the invention is not the same as the technology previously disclosed either in Indonesia or outside Indonesia in writing, oral description or through demonstration, or in other ways that enable an expert to carry out the invention before the date of receipt or priority date or has never become common knowledge (public knowledge) and published.
2). The invention contains an inventive step
Based on Article 7 paragraph (1) of Law Number 13 of 2016 Concerning Patents, an invention that contains an inventive step must have a technical effect that is not easily suspected by someone who has certain expertise in the same technical field.
3). Invention can be applied in industry (industrial applicable)
Based on Article 8 of Law Number 13 of 2016 concerning Patents, an invention can be applied in industry if the invention can be implemented in the industry as described in the patent application. If the invention is intended as a product, the product must be able to be produced repeatedly with the same quality, whereas if the invention is in the form of a process, the process must be able to be carried out or used in practice.
Referring to the patent explanation above, the key for an inventor or innovator in obtaining patent protection is to conduct a search of comparative documents on the technology to be made and developed so as to obtain a clear picture of novelty and competitors as well as technological trends, to carry out an analysis of the weaknesses and strengths of the comparative technology and the technology used. will be developed, carry out research and development, apply for a patent, obtain patent protection for a certain period of time and during the period of protection the process of commercializing patents that have been registered can be carried out.