Indonesia’s Patent Law at a Crossroads: Can Indonesia Implement a Constitutional Patent Law in the TRIPS and TRIPS-plus Era?

Abstract

Patent law is historically known as a key driver for development. The limited exclusive rights provided to inventors incentivise research and development as well as investments in innovative products and services. Patents are also known for their social functions. Disclosure of the inventions prior to the patent grant and social benefits of the inventions allow the society to learn and benefit from these inventions. The combination of the innovation incentives and social functions has led some scholars to theorise a “social contract” foundation of patent law. In recent days, there has been a shift of focus of patent law from its incentive and social functions into providing strong protection to inventions through the standards adopted in the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and TRIPS-plus standards under free trade agreements. This shift of focus has created tensions between the interests of the inventors or patent owners and the society. The protection-oriented approach to patent law will also create tensions with the Indonesian constitutional norms under Pancasila and the 1945 Constitution that require a balance between the private and public interests. The field research for this thesis shows that the impact of these tensions is particularly fundamental in relation to medicine patents and the operation of the health security programme. This thesis examines the tensions between the protection-oriented form of patent law and the Indonesian constitutional norms. It suggests that the “framework of reciprocity”, which is derived from the Indonesian constitutional norms through the adaptation of Nick Barber’s positive constitutionalism theory, provides a means to assess these tensions. The three-stage test developed from the “framework of reciprocity” is applied to test the constitutionality of the implementation of the TRIPS Agreement and TRIPS-plus patent standards in Indonesia. A patent law standard’s implementation that can meet the test will be constitutional as it can be mutually advantageous and sustainable for the inventor and society. This “reciprocal” patent law can achieve the social justice for all people of Indonesia as the state’s constitutional objective by supporting the operation of the health security programme.