In 2015: How ready is Indonesia's DGIP in facing the Madrid Protocol?

Our Nidya Kalangie attended a discussion on Indonesia’s adoption of the Madrid Protocol, held by AKHKI (Indonesian IP Consultant Association) and IIPA (Indonesian IP Academy), on 29 October 2013. Speakers at the event were Cita Citrawinda from IIPA, and Prof. Philip Griffith from UTS Australia.

The discussions addressed the concerns of Indonesian IPR consultants about workload and income, as the Madrid Protocol will ultimately enable foreign IPR consultants to enter the Indonesian market.  Other issues raised were whether existing Indonesian Trademark laws and regulations could accommodate the change, and resources at the DGIP (infrastructure and HR (examiners)) required to process international registration under the Madrid Protocol system.  It was noted that a new Trademark Law that anticipates the Madrid Protocol system is currently being discussed (but has not yet been issued).

Cita Citrawinda highlighted the fact that DGIP has to start dealing with its current problem of around 75.000 back-logged pending trademark applications as of May 2013. Another issue she raised was the setup of DGIP infrastructure such as integrated data base systems, and preparing qualified human resources for the purpose of processing applications, documents and correspondences in foreign languages in particular English, French and Spain – these are the 3 languages that are used in the Madrid Protocol system.

Prof. Philip Griffith shared his experiences in Australia and particularly the impact of ratifying the Madrid Protocol in 2001 – there IP Australia experienced difficulties processing around 10.000 applications received in their first years of Madrid Protocol ratification. A number of other countries also faced difficulties when they signed into Madrid Protocol and entered the system without putting in place: the necessary changes to their domestic trademark laws and regulations, the processes and procedures and work flows for trademark offices, their HR and training, and their trademark attorney professionals.

Masters in IP litigation - UI

Andrew Conduit was out at Universitas Indonesia ("UI") today, guest lecturing for students enrolled in the masters IP litigation course.

The session consisted of a review of practical and theoretical challenges parties face in the carriage of Commercial Court and Supreme Court litigation in Indonesia.  Common pitfalls in the selection of appropriate jurisdiction, submission of evidence.  Strategic approaches to cancellation, deletion, and infringement proceedings.  And cross-jurisdictional comparisons with practice in Australia.

R&D activity

The Indonesia Institute of Sciences (LIPI) has commented publicly on the lack of research and development activity in Indonesia.

According to a source quoted in the Jakarta Globe, LIPI claims that Indonesia needs an additional 200,000 researchers just to catch up with countries with established research programs.  The article states that the number of researchers in Indonesia as compared with its population is one in 10,000.  In comparison, Belarus is said to have 36 in 10,000.

Insufficient research and development activity in Indonesia is one way to explain the relatively small number of patent applications filed.  In 2011, for example, 6,130 were filed in Indonesia (according to the DGIP) whereas according to WIPO statistics:

• 503,582 were filed in the USA
• 526,412 were filed in China; and
• 342,610 were filed in Japan.

Constitution Court reforms

Following the recent scandal involving the Chief Justice of the Constitutional Court (see our post here), the President of the Republic of Indonesia has reacted quickly in an attempt to restore public confidence in the Court.

Government Regulation in Lieu of a Law No. 1 of 2013 came into force on 17 October 2013.  This legislative instrument amendments Law No. 24 of 2003 on the Constitutional Court by:

• establishing new criteria for 'fit and proper' tests administered to Constitutional Court justice candidates;
• requiring Constitutional Court Justice candidates to prove that they have not been a member of a political party for seven years preceding their candidacy (Akil Mochtar, the Chief Justice of the Constitutional Court who is at the centre of the current scandal, was a member of a political party immediately prior to his appointment); and
• increasing the effectiveness of the Honourable Assembly, which is tasked with addressing ethical complaints involving Constitutional Court justices.

A "Regulation in Lieu of a Law" is a special legislative instrument reserved for situations that require urgent attention.  They can be issued directly by the President, and have the same validity as a Law (which in contrast must be pass through the House of Representatives).

The changes won't serve to eliminate corruption from the Constitutional Court.  They will, however, improve the Court's administrative infrastructure and are a step in the right direction.  It is through these kinds of incremental improvements that we will eventually see significant progress.

APAA - Hanoi

Our Nidya Kalangie and Andrew Conduit have been attending the Asian Patent Attorney's Association conference in Hanoi, Vietnam.

The conference program consisted of a mix of academic and networking agendas, as well as a showcase of Vietnamese culture.  The four day event was attended by an international group of patent and trademark attorneys from around the world - around 1,600 in total.

One piece of exciting news was confirmation that in 2016 the Asian Patent Attorney's Association conference will be held in Bali, Indonesia.  This will be a wonderful opportunity to receive friends and colleagues who otherwise might not find occasion to visit us here.

Office closure - public holidays

Our offices will be closed on Monday 14 October 2013 and Tuesday 15 October 2013 to mark public holidays (Eid al-Adha Muslim holiday) in Indonesia.

Government offices including The Directorate-General of Intellectual Property, Ministry of Agriculture, and BPOM will also be closed for all or part of this time.

Our offices will be open again on Wednesday 16 October 2013.

Forcing people to be reasonable

The National Mediation Centre (Pusat Mediasi Nasional - PMN) hosted a seminar titled "Forcing People to be 'Reasonable'" in Jakarta today.

The speaker at today's session, Patrick Cavanagh, is a senior advisor to PMN as well as an academic, mediator and practicing barrister in Australia/New Zealand.  Patrick shared his thoughts on how Courts assess what constitutes reasonable efforts to resolve disputes, how the requirement to demonstrate reasonable efforts helps the Courts, and what strategies can be adopted to force parties to be reasonable.

Patrick also made some observations on how Indonesia's changing demographics would impact on formal and informal dispute resolution here.  He noted that the most common method of dispute resolution is walking away, and predicted that Indonesia's growing middle class will become less willing to do so as they develop an increased level of interest in their legal rights.  He anticipated that placing heavier burdens on both formal (Courts) and informal dispute resolution, and that legal service providers will be forced to "do more for less".

Patrick noted that these are global trends, and that there are new opportunities for those that recognise this at an early stage.

Fit and proper tests for judges

A parliamentary enquiry has been set up to examine the feasibility of implementing ongoing fit and proper tests for Indonesian judges (see here).  It is proposed the tests be conducted every five years, but it is not yet clear what criteria will be used as the basis for the assessments.

Currently, complaints about unethical and unprofessional conduct can be filed with the Judicial Commission - an authority set up specifically for this purpose (see our post here).  Considering there is already a system in place for dealing with this type of complaint, and that it is compulsory for judges to retire when they reach the age of 67, any further advantage that could be gained by implementing a regular system of fit and proper tests could be regarded as insubstantial.  It's also clear that  the regular review of judges tenures creates opportunities for abuses of power and exercise of political influence - threatening independence of the judiciary.

Indonesia's judiciary might be better off without these fit and proper tests - instead investing more resources into the Judicial Commission.