Omnibus Passengers

It is common for people to take advantage in small spaces.

The same thing happens in the matter of taking a bus. Driving together in the same direction for individual purposes is common. That happens by using an omnibus like old times in France. The original meaning of the omnibus is that. However, piggybacking for a greater purpose than just traveling, this is the strange thing. Especially if those who piggyback are classified as people with ties. Maybe they think while the bus is in need of a load.

In Indonesia, the President is also struggling when making policy breakthroughs through the omnibus laws for the sake of job creation, easier business licensing, ease of doing business, acceleration of investment and government projects. Once again, this is what is called an effort. It will be beneficial if the bus crew is happy because the passengers feel they have helped the bus route and crew in a successful journey.

Threating the national interest

What is the problem and where is the prologue going? Try to observe the existence of Article 111 of the Draft Employment Creation Bill. Look for and examine the background of the thinking behind it and the reason for its birth. That article is in Chapter VI concerning the ease of doing business. For the sake of convenience, this bill draft changes seven laws, including Law No. 13 of 2016 on patents. The elaboration of changes in each law is designed in a separate section. The formulation of Article 111 of the draft bill is regulated in part three: "Provisions in Article 20 of Law No. 13 of 2016 on patents are abolished".

KOMPAS/KURNIA YUNITA RAHAYU

The inaugural meeting of the Parliamentary Legislative Assembly with the government to discuss the formation of the omnibus law bill in the Parliament Complex, Jakarta, Wednesday (13/11/2019).

So, how is this related to the passengers? The formulation in Article 111 of the draft bill is indeed simple (confirmation of the final draft as of Feb. 11). However, its tail is not comfortable and damages the order of the Patent Law. Suppose the law can be changed, and the law is chaotic. However, the impact of the contents of Article 111 of the bill further deeply penetrates, even threatens national interests and its political design was prepared from the start to protect the interests of the passengers themselves! It could be due to the clever and subtle persuasion of the passengers for the policies that have good intentions and objectives or perhaps also because of complacent and unwary attitude of the omnibus drivers. The passengers are persistent and smart. It is timely, as the government is in need of investors who are expected to increase employment opportunities.

Article 20 of the Patent Law, which is set to be abolished, stipulates that: (1) patent holders are required to make products or use processes in Indonesia, (2) make products or use processes as referred to in paragraph (1) which must support technology transfer, investment absorption and/or providing employment. The provisions of Article 20 of the Patent Law to be abolished are the provisions in Part Five concerning the Rights and Obligations of the Patent Holders. That part is in Chapter II of the Patent Law governing the Patent Protection Scope.

Why are the provisions that are designed to support and provide the basis for technology transfer, investment absorption and employment — and used as the policy objectives — being removed? To abolish (stipulation of) Article 20 of the Patent Law means that it eliminates the obligation to use it to make products or use processes that have been granted patents and are protected in Indonesia. Not only for Indonesian citizens, the patent holders, foreigners also have the obligation to implement/use their patents. The same. Fair.

KOMPAS/ALIF ICHWAN

Coordinating Economic Minister Airlangga Hartarto (center), accompanied by House of Representatives (DPR) Speaker Puan Maharani (second right), meets the press after a closed-door meeting on Wednesday (12/2/2020) at the Senayan legislative complex, Jakarta. Accompanied by Agrarian and Spatial Planning Minister Sofyan Djalil, Law and Human Rights Minister Yasonna Laoly, Environment and Forestry Minister Siti Nurbaya, Manpower Minister Ida Fauziyah, Finance Minister Sri Mulyani Indrawati and DPR Deputy Speakers Azis Syamsuddin and Rachmat Gobel, the pair presented the President\'s Letter on the omnibus bill on job creation, which was delivered to the House on Feb. 12.

However, it is good to note, not all investors are patent holders, and not all patent holders are investors! Not all patent holders are entrepreneurs, and there is no need for the patent holders to be entrepreneurs. If this is the case, in the context of "Ease of Doing Business" as regulated in Chapter VI of the Draft Bill, where is its correlation so that it is felt necessary to tamper with the obligations of the patent holders? Is the logic so incompressible that one must use the assumption that the patent owners or patent holders are entrepreneurs or investors?

One of the principles of the Patent Law, as built into the entire intellectual property rights (HAKI) system, is the obligation to use patents in Indonesia. What are the rights granted if they are not required to use them? Very spoiled. Rights are granted through registration, but obligations must also be exercised. That is the principle of a balance between rights and obligations in law. The principle of balance is fundamental in nature, and that, too, is promoted and will be realized in the patent system. Substantially, eliminating the obligation to use patents that are registered and protected in Indonesia (including if the investors are also the patent owners or patent holders) will only turn investors who are encouraged and hailed in Indonesia into sales agents.

KOMPAS/TOTOK WIJAYANTO

Workers protest the omnibus bill on job creation at the House of Representatives on Wednesday (12/2/2020) in Jakarta. Labor activists say that the bill threatens workers rights and welfare by excluding detailed provisions on minimum wage and the hourly wage system, eliminating severance pay, reducing work hours and altering the labor system.

Once again, if that is for the investors. What if the foreign patent holders are not investors? The patent is protected in Indonesia, but the product is still made by the principal as the patent holder in the country of origin. It really needs to be observed again that patent holders have not and do not always mean investors. If it is not the investor, what does that have to do with the ease of doing given to the patent holders? Is this the name of facilitating and increasing investment? Is this what is meant by ease of doing business? Is this the purpose of job creation?

There is something bigger. If Article 20 of the Patent Law is eliminated, the meaning of a number of engineering policies regulated in Article 82 of the Patent Law is also lost. Article 82 is part of the arrangement of the conception of the Compulsory License, which is specifically developed in the Third Part of Chapter VII of the Patent Law. Chapter VII is the place for arranging the transfer of rights, licenses and patents as objects of fiduciary security. This third part contains 27 articles that specifically regulate compulsory licenses (Articles 81 to 107). Through Article 82, the principle of balancing rights and obligations is realized as emphasized in Article 20 (which will instead be removed). In addition to the principle of balance, it is also a matter of order, discipline and honesty. Article 82 is very consciously designed to prevent the abuse of rights that have been obtained by the patent holder. By shutting down Article 20 of the Patent Law, Article 82 loses its hold. The political policy system becomes a laughing stock for the passengers. With just one tap, Article 20 perishes, and the political policy design formulated in Articles 81 to 107 loses its meaning. It will even collapse.

Article 82 of the Patent Law regulates: "A compulsory license is a license to carry out patents granted based on a ministerial decree on the basis of the application on the grounds of: The patent holders do not carry out the obligation to make one product using the process in Indonesia as referred to in Article 20 paragraph (1) within a period of 36 months after being granted the Patent; has been carried out by the patent holders or licensees in a form and in a manner that is detrimental to the interests of the public; or patents resulting from the development of the patents that have been granted previously cannot be implemented without using another party\'s patents which are still under protection.”

The words are clear: how the entire political design in part three of the Compulsory License, unconsciously or consciously, will be destroyed by the government and the House of Representatives themselves.

Subsequent articles to Article 107 in the third part contain the description and procedures for applying the concept of a Compulsory License. Only with simple words in Article 111 of the Draft Employment Creation Bill that abolish Article 20, the obligation to implement patents in Indonesia is nullified. Patent holders (don\'t always mean investors!) are free and do not have to implement their patents in Indonesia. More than just the freedom that is enjoyed by the patent holders, the possibility of using the patent by another party — intentionally established through the Patent Law to prevent misuse of rights — is also abolished. The words are clear: how the entire political design in part three of the Compulsory License, unconsciously or consciously, will be destroyed by the government and the House of Representatives themselves.

Besides being great, the passengers are also slippery. Those who act "beyond the limit" will be us. "Advice" is given through Article 20, and it is not necessary to go through all arrangements regarding the Compulsory License. In the patent system, the concept of the Compulsory License (together with the concept of government use/the use by the government) is indeed known as a sensitive issue. Intellectual property rights experts are well aware, directly touching the concept will only accelerate the opening of the guise, identity and intention of the pillion passengers. On the contrary, by removing the provisions of Article 20 of the Patent Law, the entire concept building on the Compulsory License will collapse.

The interest of big corporations

In the history of intellectual property rights negotiations, especially patents since the early 1980s in the World Intellectual Property Organization (WIPO), the pros and cons of the concept always surround the forum. Likewise in the Uruguay Round of negotiations at the GATT/WTO. One political compromise that was finally adopted and made possible for the birth of the "agreement" of TRIPs-WTO is to submit to member countries to regulate the elaboration and implementation of the concept of compulsory licenses and government use in their respective national legal systems.

The limitation is as far as it is in accordance with the principles in the TRIPs (Trade Related Aspects of Intellectual Property Rights) agreement itself. The TRIPs document does not prohibit compulsory licenses or government use. So far, all laws within the scope of intellectual property rights including Law No. 13/2016 on Patents have been made with regard to these principles.

It is no secret that political compromise has not given satisfaction to many developed industrial countries. Behind the official stance of developed countries, there are interests of multinational companies, mainly those engaged in pharmaceutical/drug manufacturing. For pursuing that dissatisfaction, they continue to try to realize what has not been achieved in the TRIPs agreement through multilateral fora such as APEC and (inter) regionally such as the European Union, ASEAN, even bilaterally through Free Trade Agreement (FTA) negotiations or other comprehensive schemes. Negotiations for the provision of technical or financial assistance often cannot be separated from these interests.

The economic and trade interests in intellectual property rights that are motivated and emphasize the monopolistic character are what they really want to fight for and maintain.

The economic and trade interests in intellectual property rights that are motivated and emphasize the monopolistic character are what they really want to fight for and maintain. They master a lot patents for medicinal products that are often in many disasters, which threaten human life, are needed in many countries. If being able to control the market, product volume and price from the country, why bother making it in another country? Again, patent holders are not always investors. Registering a patent, they just need their protection. It does not always mean they are going to do business. Therefore, if Article 111 of the Draft Employment Creation Bill makes it an assumption that the patent holders are investors, the omnibus does not necessarily mean "the sweep of the universe", and also far from the meaning of tantrums? Just ignore the formulation of Article 111

Deliberation of the Draft Employment Creation Bill may still take place in the recent coronavirus outbreak. Previously, there were SARS and MERS. There were also bird flu and monkey measles. Likewise, HIV/AIDS. All of them have no final vaccine.

Kompas

Bambang Kesowo, Chairman of the board of supervisors of the National Resilience Institute Alumni Association (IKAL Lemhannas); lecturer of postgraduate law school at Gadjah Mada University