Indonesia has ratified the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization on 8 May 2013 through the adoption of Act No. 11 of 2013. Following such ratification, a Draft Bill on Patent is now under deliberation in Indonesian Parliament and expected to be finalised within one year. The Draft Bill seeks to amend the Act No. 14 of 2001 on Patent.
One of new points of the revision important to mention here is the proposed obligation to specify origin of Genetic Resources(GR) and/or Traditional Knowledge (TK) for those inventions derived from either source. Applicant must declare clearly and properly about such GR and/or TK origin in the description before filing (Article 25 of the Draft Bill).
Some practitioners have foreseen that implementation of this regulation will likely depend on availability and versatility of other relevant government institutions (and also regulations) pertaining to GR informatics and databases. For example, still unclear of whether the Patent Examiner should also examine validity of data relating with GR and/or TK origin, including name of genetic resources, etc. For the applicant, this new regulation would absolutely create additional procedures that need to be provided, which to an extent will prolong the time to prepare an invention or patent specification.
In the meantime, it is still thought that upon enacted, (may be during certain years of initial implementation), any failure to meet the Article 25 should be tolerable and should not cause any refusal over the Claimed invention at the substantive examination stage, since the examination should normally be addressed to patentability requirements such as novelty, inventive step and industrial applicability.
It is still unclear if it means that a patent application will not be refused in such cases as: the applicant failed to disclose the source on purpose (intentionally), the applicant failed to disclose the source due to negligence, and the applicant couldn’t disclose the source because applicant couldn’t identify the source.
Further, still relates to the above Article 25, there is a question, if a patent application is then approved (granted) despite of lacking disclosure on GR/TK origin within its description, could any third party still have an opportunity to file a cancellation against the said granted patent? Again, systemic preparedness is the key word and prerequsite for future implementation of the new law.
In view of the current situation in the country, where regulation on GR management is yet to be resulted, with some institutions in related ministeries are not in the “ready to cooperate tightly” condition, it is expected that the implementation of Article 25 will require longer grace period before running in full capacity.
UNFINISHED DRAFT BILL OF GENETIC RESOURCES MANAGEMENT
Draft Bill of Genetic Resources Managementhas initially been prepared since 2001. However from 2005 to 2015 (with academic assessment already finalized since August 2012), the draft has not been passed in the national legislation program (meaning that there would not be a new law on genetic resources management for Indonesia in near future).
Several complicated issues appeared behind the draft, including change of policies relating with regional autonomy, new technologies, controversies on its scope, low cross-section response for harmonization, etc. These have delayed the finalization of the bill at public stage until today.
(by Kusno Hadi Kuncoro)