Patent Implementation by Indonesian Government in dealing with COVID-19

The government of the Republic of Indonesia in the near future will implement patent (Government use) towards Favipiravir medicine to ensure the availability of the medicine in order to distribute it to people affected by COVID-19. Favipiravir is one of the medicines that might help to reduce COVID-19 in Indonesia.

In times like this, beside its expensive price, the availability of materials or production of the medicines is not comparable with the demand of the medicines. Therefore the government issued a step to implement patent towards Favipiravir which is expected to handle the medicine access amidst pandemic.

It is known that 6 Favipiravir patent in Indonesia has been owned by Japanese pharmaceutical company Toyama Chemical Co., Ltd. and 1 patent owned by an English company GlaxoSmithKline.

Director General of Intellectual Property had conducted a direct inspection of the factory owned by Indonesian pharmaceutical company, PT Kimia Farma Plant Banjaran.

At the same time, the Director of PT Kimia Farma Plant Banjaran also said that PT Kimia Farma Plant Banjaran could produce large quantities of Favipirafir, and looking forward to obtain Government use patent from the Indonesian government.

According to Law number 13/2016 regarding patent (Patent Law), Patent is an exclusive rights given by the state to an inventors for their inventions in technology and to carry out the invention by themselves or to give consent to others to carry it out for a certain period of time.

Patent implementation by government is already regulated in Patent Law, to be exact in article 109 paragraph (1), which reads:

“Government may implement patent in Indonesia based on the following considerations:

  1. Related to defense and national security; or
  2. Very urgent need in the public interest.”

Regarding to implementing patent, the government may implement patent rights and also give consent to a third party to implement the patent. In that matter, Article 116 of Patent Law explains the requirements of a third-party to be appointed by the government, namely:

  1. Having the facility and able to implement patent;
  2. Not transferring the implementation of said patent to other parties; and
  3. Having a good producing method, distribution, and scrutiny in compliant with regulations

The government is obligated to give a fair reward to patent holders. This is regulated in article 115 paragraph (1) and (2) of Patent Law. However in patent implementation, if the government is handing the patent rights to a third party, article 31 paragraph (3) of the presidential regulation number 77/2020 regarding the Procedure of patent implementation by the government, explains:

“In the event that the implementation of a patent as referred to in Article 2 Is carried out by a third party appointed by the Government, the reward as referred to in paragraph (1) shall be carried out by a third party appointed by the Government”

 

And if there any disagreement from patent holders regarding to the amount of reward given by the government, the patent holders may file a lawsuit to commercial court.

And the cost of patent implementation by the government is charged to the state revenue and expenditure budget.

Source:

  1. Undang-Undang Nomor 13 Tahun 2016 tentang Paten
  2. Peraturan Presiden Nomor 77 Tahun 2020 tentang Tata Cara Pelaksanaan Paten oleh Pemerintah
  3. https://www.dgip.go.id/artikel/detail-artikel/pemerintah-siapkan-obat-covid-19-murah?kategori=liputan-humas
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