By: Iman Sjahputra SH, SpN, LL.M

People may be familiar with the term of Intellectual Property Rights (IPR), but they still confuse with real understanding about IPR. People commonly mixed up the terminologies on IPR and resulted in the misinterpretation and misused of IPR terminologies. It is very often for us to hear the discussion among the communities, especially the businessman, whereas they define trademark as the same with patent, copyright and design and states that all terms have the same meaning. It will be more complicated if this IPR knowledge also not being well understood or mastered by the law enforcers.

In fact all these terminologies have their own different meaning. The term of “trademark” refers to the label which is placed on a product/service. The term of “patent” is more into the technology invention. And “copyright” is directed to the art, knowledge and literature. While “design” is aimed to the shape, configuration and pattern of a product. It is also the same for “trade secret”, “integrated circuit” and “plant variety” whereas all of them are protected in the IPR.

The community lack of understanding on IPR is also affected the IPR conflict settlement that is getting more complicated. All the IPR conflicts are were considered as the same in mechanism and settlement method. For example, the patent case thought to be the same in solving in case in the violation of trademark case. In fact, the substance of patent conflict is not on the existence of the basic similarities as the case commonly happened in the trademark conflict as mentioned in the Trademark law. The legal substance in patent conflict is related to the existence of the new invention (the novelty aspect). The novelty shall not have to be an invention that is never invented by a scientist before, but it can be an addition or development of an existing innovation.

The Patent Law No. 14 Year 2001 guarantees the existence an invention in which a perfection and development of the existing product. However, the existence of this regulation is often to be neglected by the law enforcer. May be the law enforcer does not understand this regulation or even pretending not to know about it. As the result, there are many patent cases are solved using the other terms and meanings, for example by using the Trademark law. It is strange that this thing is common to be happened. A criminal patent case involving a high technology invention which is commonly has to be accompanied with laboratory examinations to reveal the material truth can be opposed by the expert witness of certain field knowledge.

Deviate Trial.

As a plain view, an invention cannot be valued from its shape, configuration nor design as in the industrial design law. Ironically, it is often in the law enforcement process whereas the existence of the wrong expert witness can effect the conflict settlement which is also has impact on the Judge’s decision whereas at time it  can be very fatal, if we do not want to call it deviate trial.

How come? It is because the mix in the handling pattern which is not precise if viewed from legal aspect. In fact it is impossible to solve patent conflict using industrial design problem solving pattern. Isn’t it will be fatal in the conflict process and the solving? For example, there is a Judge’s decision that a patent invention is regarded to be the same as the former revealed patent because of the existence on the consideration based on the witness information that viewed it from its shape aspect, and not based on the laboratory examination. In the other hand, we know that the decision whether an invention can be deemed as same or different invention cannot be qualified based on the expert witness only, isn’t it? The fact it is supposed to be examined based on the neutral laboratory examination. If there is an expert witness information in a patent conflict then it shall be used as a guidance only, not as the main thing in the making the decision.

In the patent field, there are many recognized patent categories, such as Utility Patent, Plant Patent and Design Patent. A Utility Patent is a specific innovation related to technology field. In this case, it can be a product or process, or the perfection and development of a product or process. Therefore, a product which is a development or perfection of an existing product cannot be regarded as copying of a previously released invention. However, it still be regarded as having a patent in case of the later invention got a novelty.

The very real example is an AC (Air Condition) whereas from its shape and configuration it is nearly the same from many producers. The first inventor of AC will be granted his right to exploit its invention. As times pass, in the next invention there are other inventors who tried to develop the first AC invention. The specialty on AC function will be exposed, such as the AC can adjust it self with the weather, automatic cold or hot timer. Is it fair if these inventors are not given with patent rights?

As long as such invention contains novelty and has the prior art, then the patent right shall be granted. The inventors of new inventions as a process development or perfection cannot be sued as the previous/former revealed patent offender based on similar element/formula.   Therefore, a same product is not always be categorized as infringer of someone’s patent if it is not being proven with the novelty elements. We do not want our beloved country being branded as a weak country in the IPR law enforcement by foreigners. Ultimately we hope, either the community, more over the law enforcer, will be more open in facing the terminologies different in the IPR fields because as the unstoppable globalization the IPR matters will be more complex in the future.

*) Writer is an advocate domiciled in Jakarta who handles many Trademark, Patent and Copyright cases.