Patent Norm Conflict on Trade-Related Aspect Intellectual Property Rights (TRIPs) in Mining Perspective

Abstract

Law No. 4 of 2009 on Minerals and Coal constitutes the legal basis of mining business activities in Indonesia, in which case foreign companies shall be subject to the provisions of Law Number 13 Year 2016 regarding Patents in the context of holders of mining patents. The provisions of Article 20 paragraph (1) of Law Number 13 Year 2016 regarding Patent states that the Patent holder is obliged to make products or use the process in Indonesia. In the perspective of mining products the process is mandatory in Indonesia, the provision is aimed at patent holders not only to import mining products but they should be able to invest by making mining companies in Indonesia, so that ultimately can occur the absorption of In donesian workforce in the field of mining business. This is in line with the provisions of Article 20 paragraph (2) stating making the product or using the process referred to in paragraph (1) shall support the transfer of technology, the absorption of investment and / or the provision of employment. However, such provision if trace d is contrary to the principle of non-discrimination set forth in the terms of the Trade-Related As pect Intellectual Property Rights (TRIPs) that Indonesia has ratified as Law no. 7 of 1994 on Ratification of Agreement Establishing The World Trade Organization, Article 27 paragraph (1) of the TRIPS Agreement states that a Patent shall be available and patents are enjoyed without discrimination in respect of where it is found, in technology and whether the product is imported or produced locally, The conventional conflict in the perspective of a mining company lies with the subject of patent holders and / or foreign mining companies holding patents in Indonesia shall establish a mining factory in Indonesia that produces a patent product registered in its name in Indonesia, if a mining plant is not present in Indonesia the mining patent is not recognized in Indonesia.

Comparing patent protection in Indonesia with that in Singapore and Hong Kong

“…The economic growth of a country can increase with technology (Nasir, 2016;Roisah, 2018). Therefore, many countries focus on advancing and supporting their citizens in education, technology utilization, and discovery by applying technology (Indradewi, 2018). The existing technological inventions must be patented so that related inventors can get legal protection for their inventions.…”