As it is known, in obtaining a patent, it must be based on the Application requested by the Applicant to the Minister in writing in Indonesian by paying a fee.
In the event that the formal requirements of the Patent Application are incomplete, the Minister will inform the Applicant to fulfill the requirements of the Application within a period of 3 (three) months from the date of notification sent by the Minister and can be extended at most for 2 (two) month.
The applicant is requested fulfill the requirements within the specified period. If the Applicant does not fulfill the requirements of the Application within the specified time period, the Minister will notify in writing to the Applicant that the application is deemed withdrawn.
Furthermore, in connection with the substantive examination, if the substantive examination of an application is not requested or the fee is not paid within the specified time period, then the Application will also deemed withdrawn.
As it is known so far that for the Patent Application which has been considered withdrawn cannot be further proceed for registration and / or protection. However, considering the importance of the invention for the applicant, the Government of Indonesia has issued Regulation of the Minister of Law and Human Rights of the Republic of Indonesia Number 38 Year 2018 concerning Patent Application (“Ministry Regulation 38/2018”).
After the enactment of the regulation, the patent application that has “deemed withdrawn” can be resumed with condition by submitting a written request to revive the application accompanied by reasons and by paying a fee. This is as stipulated in the provisions of Article 102 Paragraph (1) and (2) of the Ministry Regulation No. 38/2018 which states that:
- Article 102 Paragraph (1)
“In the event that the Application is deemed withdrawn as referred to in article 29 Paragraph (4), Article 33, Article 42, Article 45 Paragraph (7), Article 63 Paragraph (1), Article 65 Paragraph (2), Article 66 Paragraph (2), Article 74 Paragraph (6), Article 86 Paragraph (2) and Article 100 Paragraph (7), the Applicant may submit a request to resume the application which is accompanied by a reason that is subject to a fee based on statutory provisions in the field of non-tax state revenue applicable to Ministry of Law and Human Rights”.
- Article 102 Paragraph (2)
“Submission of the request as referred to in paragraph (1) can be submitted no later than 6 (six) months from the date of notification of withdrawn”.
With the existance provision of Article 102 of Ministry Regulation No. 38/2018, it raises efforts and solutions to the applicant for a patent application that has deemed withdrawn to continue the patent prosecution.
The above Ministerial Regulation also regulates further the provisions of Law Number 13 of 2016 concerning Patent in detail regarding (a) the terms and procedures for filing patent application, (b) application filed with Priority Rights, (c) Application filed based on The Treaty of Patent Cooperation, (d) procedures for amendment and divisional application, (e) procedures for withdrawal of application, (f) terms and procedures for substantive examination, (g) terms and procedures for recording data changes.
- Law Number 13 of 2016 concerning Patent
- Ministerial Regulation Number 38 of 2018 concerning Patent Application