dc.contributor.advisor |
Kelsey, Jane |
|
dc.contributor.advisor |
Frankel, Susy |
|
dc.contributor.advisor |
Willis, Edward |
|
dc.contributor.author |
Yudhianto, Auxentius Andry |
|
dc.date.accessioned |
2021-12-22T01:35:55Z |
|
dc.date.available |
2021-12-22T01:35:55Z |
|
dc.date.issued |
2021 |
en |
dc.identifier.uri |
https://hdl.handle.net/2292/57849 |
|
dc.description.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. |
|
dc.publisher |
ResearchSpace@Auckland |
en |
dc.relation.ispartof |
PhD Thesis - University of Auckland |
en |
dc.relation.isreferencedby |
UoA |
en |
dc.rights |
Items in ResearchSpace are protected by copyright, with all rights reserved, unless otherwise indicated. |
en |
dc.rights |
Items in ResearchSpace are protected by copyright, with all rights reserved, unless otherwise indicated. |
|
dc.rights.uri |
https://researchspace.auckland.ac.nz/docs/uoa-docs/rights.htm |
en |
dc.rights.uri |
http://creativecommons.org/licenses/by-nc-sa/3.0/nz/ |
|
dc.title |
Indonesia’s Patent Law at a Crossroads: Can Indonesia Implement a Constitutional Patent Law in the TRIPS and TRIPS-plus Era? |
|
dc.type |
Thesis |
en |
thesis.degree.discipline |
Law |
|
thesis.degree.grantor |
The University of Auckland |
en |
thesis.degree.level |
Doctoral |
en |
thesis.degree.name |
PhD |
en |
dc.date.updated |
2021-12-06T00:29:47Z |
|
dc.rights.holder |
Copyright: The author |
en |
dc.rights.accessrights |
http://purl.org/eprint/accessRights/OpenAccess |
en |
dc.identifier.wikidata |
Q112957337 |
|