Law Number 13 of 2016 concerning Patents (“Patent Law”) provides Interlocutory Injunction (Penetapan Sementara) as a legal action for a patent holder who seeks a “quick response” action against a patent infringement. A particular purpose of this legal action is to avoid further damages for the patent holder by the alleged infringer. The interlocutory injunction is regulated under the Supreme Court Regulation Number 5 of 2012 concerning Interlocutory Injunction and Patent Law.
Any patent holder has its own rights to prevent any means of the infringer, thus Interlocutory Injunction is one of the instruments to cease any further damage. Moreover, according to Article 155 of the Patent Law, the purpose of an Interlocutory Injunction is to:
a. prevent the entry of products allegedly infringing the Patent and/or the rights pertaining to the Patent.
b. secure and prevent the elimination of evidence by the infringer; and/or
c. stop the infringement to prevent bigger damage.
Prior to filing a request for Interlocutory Injunction through Commercial Court, the patent holder is required to provide the following documentation to ensure the request can be granted before the Commercial Court:
a. proof of Patent ownership, such as a Patent Certificate;
b. proof of early indication that Patent infringement has taken place;
c. clear statement concerning the goods and/or document requested looked for, gathered, and secured for evidence; and
d. deposit cash and/or bank
Once the necessary documentation has been set and filed, the process of Interlocutory Injunction at the Commercial Court shall be as follows:
- The patent holder filed for Interlocutory Injunction through Commercial Court, by attaching the required preliminary evidence (e.g., Patent Certificate, an indication of Patent Infringement by the alleged infringer, etc.,).
- Within 4 (four) days of the Interlocutory Injunction filed through the Commercial Court, the Commercial Court will decide whether to grant or reject the Interlocutory Injunction request.
- During the preliminary interlocutory injunction, a hearing will be first held without the alleged infringer.1
- If an Interlocutory Injunction request is granted, the judge will issue a Letter of Interlocutory Injunction and notify the alleged infringer.
- The alleged infringer will summon to the court within 7 (seven) days of receiving the notification of the interlocutory injunction letter and is given a chance to provide necessary argumentation and evidence before the court.2
- After having an argument and evidence from both sides, within 30 (thirty) days since the interlocutory injunction letter was issued, the court will provide a final decision on whether to reaffirm or cancel the interlocutory injunction.3
Further legal action can be taken by the Patent Holder if the court reaffirms the interlocutory injunction, namely4:
a. cash deposit that has been paid must be returned to the plaintiff of the interlocutory injunction;
b. a plaintiff of interlocutory injunction may request for compensation of damages due to Patent infringement; and/or
c. plaintiff of interlocutory injunction may report the Patent infringemen
The interlocutory injunction, if reaffirm by the court, should be followed by a patent infringement lawsuit by the Patent Holder, otherwise within 30 (thirty) days after the interlocutory injunction reaffirms, then the Interlocutory Injunction will expire automatically.5
Meanwhile, if the interlocutory injunction is canceled by the court, the Alleged Infringer could take the following legal action:
a. The deposit money will be given to the alleged infringer as compensation for the interlocutory injunction.6
b. If the deposit money received is not sufficient to recover the damages caused by interlocutory injunction, the alleged infringer
could file a Compensation Lawsuit.7
Since both parties cannot file an appeal to the High Court and/or Supreme Court, the Interlocutory Injunction decision is a final and binding decision.8
To conclude, since the nature of an Interlocutory injunction is a fast legal action that can be taken by a Patent Holder against the alleged patent infringer, then the process is swift and final. Thus, every required document, including preliminary evidence, must be arranged by the Patent Holder upfront, including providing deposit money to process the interlocutory injunction.
If the Interlocutory Injunction is reaffirmed by the court, the Patent Holder needs to file further legal action, namely Compensation Lawsuit against the alleged infringer, otherwise, the interlocutory injunction will expire automatically.
On the other hand, in case the Interlocutory Injunction is canceled by the court, the Alleged Infringer may file a compensation lawsuit against the Patent Holder. Considering the procedures above are risky for the patent holder, therefore, the patent holder is suggested to prepare strong and solid evidence in filing an interlocutory injunction before the Commercial Court.
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Legal Reference:
• Law Number 13 of 2016 concerning Patents.
• Supreme Court Regulation Number 5 of 2012 concerning Interlocutory Injunction.
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1 Article 157 paragraph (2) and paragraph (3) of Patent Law.
2 Article 158 paragraph (1) and paragraph (2) Patent Law in connection with Article 9 Supreme Court Regulation Number 5 of 2012 concerning Interlocutory Injunction.
3 Article 158 paragraph (3) of Patent Law.
4 Article 158 paragraph (4) of Patent Law.
5 Article 15 paragraph (2) Supreme Court Regulation No. 5 of 2012.
6 Article 158 paragraph (5) of Patent Law.
7 Article 12 paragraph (3) Supreme Court Regulation Number 5 of 2012 concerning