On 16 December 2015 Indonesian Patent Appeal Commission (“the Appeal Commission”) has granted YAMAHA KK’s patent appeal. The Appeal Commission consideration, that is:
After having reviewed the substantive examination phase II result from the Appellee wherein in the said examination result stated that it should be inserted the reference number to the drawings of invention in accordance to the previous amendment. The Board opined that reference number was not the main point, and in the absence of reference number was not the main point of the refusal reason in accordance to the Article 24 Law No. 14 of 2001 on patent.
Considering that Appellee stated in the final examination result wherein time limit of the examination phase stage has been lapsed and etc, thus the Board opined that the time limit of 36 months as of the request of substantive examination was filed in accordance to the applicable provision, however it didn’t mean that the patent examiner should decide uncertainty decision and would be detrimental to the Applicant.
Considering that the Appellee judged not relying on things which were substantial matter related to the patentability of Patent application P00200800426, but instead stated that the said Patent application were not clear in accordance to the Article 56 of Patent Law. Whereas the Board opined that this was not in line with the Article 51 paragraph (2) Law No. 14 of 2001 on Patent. Unclear evaluation from the Appellee should be specified in order to ease the Appellant for responding the inquiries from the Appellee. According to the Board, unclear statement which not stated further explanation in terms of unclear matter was not in line with the applicable provision.
The refusal argument raised by the Appellee stated that the patent specification was unclear without mentioning further detailed about the said unclarity matters, so that the legal grounds of the said rejection were unclear.
Considering that the Appellee stated in his Substantive Examination wherein the claims amendment 1-9 by referring to the China granted claims CN-101353976 B considered some part its claims expand the scope of protection, the Board opined that the said evaluation was less appropriately because it didn’t inform specifically to the Appellant which claims to be considered to expand the scope of protection.
Whereas in accordance to the substantive examination result to the claims amendment 1-9 which refer to the China patent CN-101353976 B has fulfilled the novelty and inventive step requirements in accordance to the Article 2 Law No. 14 of 2001 on Patent.
According to the above consideration, the Patent Appeal Commission decided:
“Awarding and agreeing on the APPELLANT patent appeal petition under Reference Number: Reg.03/KBP/IV/2015 that was filed by the Proxy of Appellant Maulana and Partners Law Firm as well as ordering the Directorate General of Intellectual Property Rights to conduct this decision by issuing Certificates of Patent Application P00200800426.”
February 9, 2015, the House of Representative (“The House”) has determined National Legislation Program (“Prolegnas”) for 2015-2019 and Prolegnas Priority 2015. Such a minimalist number in amount finally agreed after an intensive discussion between the House which is represented by Legislation Council (Baleg) as the Coordinator for Prolegnas in The House, the Government, represented and coordinated by the Ministry of Law and Human Rights, and (for the first time) the Regional Representatives (“DPD”). 159 Drafts Law determined as Prolegnas 2015-2019, while 39 Drafts Law determined as Priority for 2015.
The engagement of DPD in Prolegnas discussion was positively considered as an acknowledgement of the verdict of Constitutional Court (Verdict Number 92/PUU-X/2012). Originally, the DPD has the authority to initiate draft Law in relation to specific matters which among other things are about reginal autonomy, relationship between central and local government, the establishment of new autonomy region, etc. This “new” tradition hopefully can boost legislative performance in the Prolegnas realialisation.
To be in the Prolegnas, either annual or long list 2015-2019, a proposed of Draft of Law shall be equipped with the academic paper, the draft of Law, description concept, and urgency confirmation. By these tight requirements, the government, the People’s Representatives Council and the DPD obviously trying hard to be realistic in fulfilling the legal vacuum and the need of law in the society as well as fixing bad image. The total of 159 drafts of law for Prolegnas 2015-2019 is less than the target number of the House at the previous period which is targeted more than 200 drafts of law. Although in the current period there is no such thing as ‘luncuran’ (the draft law which carry over from previous period), however the House, the Government, as weel as the DPD have agreed putting priorities to the draft Law which are already in the Stage 1 and Stage 2 discussion, such as Draft of Law of Indonesian Criminal Code and Indonesian Procedural Law.
Prolegnas 2015 also making priorities for drafts law in economic sector, such as the revision of Law on Prohibition of Monopolistic Practice and Unfair Business Competition and revision of Law on Banking, bearing in mind the fact that Indonesia is entering ASEAN Economic Community 2015.
A realistic and down to earth Prolegnas should be appreciated. However, consistency and persistency of all parties, especially the coordination with government representatives during the discussion also becomes key factor in the realization the national legislation. Political polarization would have “enriched” dynamics of the discussion not to mention that the working period of the The People’s Representatives Council will have more recess period.
The Panel of Judges of Central Jakarta Commercial Court has decided to cancel the registration of STL trademark in class 7 (seven) with the legal basis of having similar to STIHL trademark which owned by Andreas Stihl AG & Co. KG, a German enterprise.
According to the Article 6 paragraph (1) letter b juncto Article 68 of Indonesian Marks Law (Law No. 15 Year 2001), the registration of trademark can be cancelled through court decision, if such trademark is similar to or identical with a well-known trademark. Further to know, the trademark of STIHL is a well-known trademark in Indonesia, which supported by the Certificate of Trademark in many countries, advertisement products and annual sales report of STIHL products in overseas.
Moreover, Maulana and Partners Law Firm also succeed in convincing the Panel of Judges of Central Jakarta Commercial Court that the registration of STL trademark was based on bad faith (Article 4 of Indonesian Marks Law).
Law No. 5 Year 1999 regarding to the Prohibition of Monopolistic Practices and Unfair Competition (‘Law No. 5 Year 1999”) has been enacted on 5 March 1999 and was enforced since 5 September 2000. The implementation of Law No. 5 Year 1999 is entrusted to and implemented by Komisi Pengawas Persaingan Usaha (“KPPU”/Supervisory Commision for Business Competition), that has already been established through Presidential Decree No. 75 Year 1999 about Komisi Pengawas Persaingan Usaha. By operation of law, the Commision is an independent institution and thus “free of the influence and power of the Government”.
Independent from the influence and control of the Government and other parties, the KPPU’s duties include drafting implementing regulations, conducting examinations of any party alleged to have violated Law No. 5 Year 1999, issuing binding decisions, and imposing legal sanction(s) on any violator of the law. According to the implementation of Law No. 5 Year 1999, therefore such regulation is a legal provision of all the business competition cases in Indonesia.
With regard to the statistic above, it shows that the highest amount of business competition case is in year of 2008 (48 cases) and the lowest amount of business competition case is in year of 2014 (6 cases). Total of cases in 10 (ten) years or in the period of year 2005-2014 is 212 (two hundred and twelve) cases. From the total 212 cases in 10 (ten) years, then the average in each year is 21 (twenty one) cases. The most cases in the such period is infringement to the Article 22 regarding Conspiracy of Law No. 5 Year 1999.
Intellectual Property Rights (IPR) Seminar 2015 “
The Effect of the ASEAN Single Market in 2015 to the IP Protection”
-10 February 2015 at Grand Sahid Jaya Hotel Jakarta-
The Intellectual Property Rights (IPR) Seminar 2015 with theme “The Effect of the ASEAN Single Market in 2015 to the IP Protection” was held on 10 February 2015 at Grand Sahid Jaya Hotel Jakarta with 4 (four) Japanese speakers from Japan Patent Office (“JPO”), Asia-Pacific lndustrial Property Center- Japan Institute for Promoting Invention and Innovation (“APIC-JIPII”),Toyosaki & Associates and Economic Research Institute for ASEAN and East Asia (“ERIA”) as well as 2 (two) Indonesian speakers from Directorate of Cooperation and Promotion of Directorate General of Intellectual Property Right (“DGIPR”) and Faculty of Law, University of Indonesia.The seminar was attended by 97 (ninety seven) participants from Law Firm, Government, Company and University.
The seminar was firstly start with an opening ceremony and the first speech was from Mr. Insan Budi Maulana as the Indonesian Intellectual Property Alumni Association(“IIPAA”)Coordinator followed by Ms. Sachio Yoshino as the representative of JPO. Mr. Ahmad M. Ramli, who now holds the position as the Director General at the DGIPR, also took part in the event as a keynote speaker.
The seminar was divided into 2 (two)sessions. The seminar materials in the first session was delivered by Ms. Sachio Yoshino as Deputy Director, International Cooperation Division of JPO who talked about IP Policy for Sustainable Economic Development in Japan and by Ms. Ika Ahyani Kurniawati, Head of PromotionDGIPR, who shared a knowledge regarding IP Development in Indonesia. The third speaker for the first session was Mr. Takao Ogiya as Director General of APIC-JIPII who presented material regarding Japan’s Experience of Strategic IPR Acquisition Utilizing PCT and PPH Systems.
The second session of the seminar took place at the same date, was involving Ms. Reiko Toyosaki (Attorney, Toyosaki & Associates) who shared her keen knowledge about Outline of Madrid Protocol and its Utilization in Japan and Mr. Agus Sardjono as a Lecturer of Intellectual Property, Faculty of Law, University of Indonesia, who presented material regarding to the Position of Indonesia in IP among the ASEAN Countries.
In the end of the second session was a special speech from Mr. Shimpei Yamamoto, Managing Director Research AffairsERIA who delivered a material with title Report on Research of Economics and IP in ASEAN Member States.The seminar ran succesfully due to a good cooperation between all parties who took part in this event. We surely hope this kind of event can still be held in the upcoming years.
The panel of Judges has issued the Final Judgment of claim for judicial review case No. 84 B/PK/PJK/2011 on June 7, 2011, that stated to reject the claim for judicial review by the Judicial Review Claimant: the Director General of Taxes.
This case is between The Director General of Taxes and BUT. Mitsui & Co. Ltd. The background of this rejection due to the reasons for judicial review are unjustifiable, because the legal consideration and Tax Court Decision No. Put.18032/PP/M.I/13/2009 dated May 1, 2009 jo. Decision No. Put.18032.R/PP/M.I/13/2009 dated July 13, 2009 which grants in part the petition for appeal of the Appellant against Decision of the Director General of Taxes No. KEP-1606/WPJ.07/ BD.05.2007 dated September 25, 2007 so that the amount due wereRp. 481.938.195 hadbeen accurate and correct.Therefore,there are no legal consideration and decision which clearly inconsistent with the provisions of the applicable laws and regulations as the provisions of Article 91 sub-article e Law No. 14 of2002 onTax Court.
Based on the above mentioned consideration, the claim for judicial review filed by the Judicial Review Claimant: the Director General of Taxes has no ground and therefore, must be rejected.
Since January 26, 2015, Indonesia Investment Coordinating Board (BKPM) conducted a soft launching of One Stop Services (OSS) systemby President Joko Widodo. With regard to this matter, in the future investors no longer need to apply licenses in numerous ministriesin Indonesia. BKPM will provide a recordationof it.The purpose of OSS system is the achievement of the licensing process is fast, simple, transparent and integrated.
There are 22 (twenty two) ministries/institutions involved in OSS, such as: Ministry of Energy and Mineral Resources (10 group permits), Ministry of Environment and Forestry (35 group permits), Ministry of Industry (11 group permits), Ministry of Agrarian, Spatial and National Land Agency (1 group permit), Ministry of Trade ( 7 group permits), Ministry of Agriculture (5 group permits), Ministry of Finance (2 group permits), Ministry of Transportation (7 group permits), Ministry of Justice and Human Rights (1 group permit), Ministry of Health (9 group permits), Ministry of Tourism (19 group permits), Ministry of Communications and Information Technology (14 group permits), Ministry of Employment (5 group permits), Ministry of Public Works and Housing (7 group permits), Ministry of Maritime and Fisheries Affairs (1 group permits), Ministry of Education and Culture (1 group permits), Ministry of Defense (1 group permits), Indonesian National Police (1 group permits), National Agency of Drugs and Foods Controls/BPOM (1 group permits), National Standardization Agency of Indonesia/BSN (1 group permits), State Cryptography Agency/LEMSANEG, PT. PLN (Persero).
OSS center ready to serve all areas of business investment license, except oil and gas upstream and banking sector. Investors who want to apply for a permit in Ministry/Agencyas mentioned above do not have to go back and forth to the Ministry to apply licenses. The process will be just as simple as come to BKPM and go toward the desk of each ministry or agency that is required for the permit.
There was a Marks Office action dated 28 June 2013 notifying the rejection of SOYJOY trademark application with Agenda Number D002010034031, class of goods 29 on grounds of similarities to the trademark JOYSOY which has been registered and filed by PT. Monysaga Prima previously.
As the proceeding goes by, the marks appeal commission then considered that JOYSOY trademark registration No. IDM000332752 which became the basis of rejection is a trademark contained with word mark element JOY and word mark SOY, that mark elements which prominent and dominant is word mark JOYSOY. Meanwhile, the comparable trademark is SOYJOY with JOYSOY where the prominent elements from both mark there is no similarity which can cause to the presence of similarity in principle between both mark which compared, either of the form, concept, or similarity in pronunciation. Thus, based on Decision Marks Appeal Commission No. 165/KBM/HKI/2014 dated May 28, 2014 decided to accept the appeal and furthermore, SOYJOY trademark can be filed and registered by Otsuka Pharmaceutical Co., Ltd.