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From Exclusivity to Inclusivity: Intellectual Property Rights (IPR) for the Greater Good

A panel discussion presented by Nusantara Innovation Forum (NIF) and Young Indonesian Professionals' Association (YIPA)

Saturday, 29th August 2020

For the first time, NIF and YIPA collaborated in co-hosting an online panel discussion on how IPR can be leveraged to attract business investors (in the perspective of exclusivity) and to push the development of COVID-19 vaccines (in the perspective of inclusivity). Our MC, Nabil Fadhiya, Events Director of YIPA UK, opened the session by introducing YIPA, NIF, our panellists and moderator. Our panellists today comprise of three legal experts from three different countries: (i) Justi Kusumah, the Founding and Managing Partner of K&K Advocates, a boutique IP firm specializing in technology in Indonesia; (ii) Shaun Leong, FCIArb, an international lawyer specializes in commercial disputes and digital breaches in Singapore; (iii) Sunil Mohindra, a Corporate Partner at Slater Heelis LLP, a commercial law firm in Manchester, UK.

Antonius A. Tigor, President of NIF Indonesia, moderated today’s discussion by first establishing the the definition of IPR, whereby IPR is the results of thoughts, ideas or discovery expressed in the form of literature, science, art, design, components, layout, or any creation. IPRs consist of copyrights and industrial property rights, such as trademarks, patents, industrial designs, layout designs and trade secrets. IPR protection regulations and rules differ from country to country.

Justi explained how Indonesian Diaspora can register their innovations or inventions in Indonesia. The IPR system in Indonesia is based on registration, except for copyrights and trade secret. Unlike in the past, all Indonesian IPR filings can now be done fully online; however, non-Indonesian citizens still need to hire a local or Indonesian IP consultant to do so.

The discussion continued to Sunil; he explained the classification of IPRs:

  1. Patents are limited rights to stop others from copying inventions, such as a new drug or a particular style of engine, without the permission of the inventors.

  2. Copyrights are legal protection to the published and unpublished works of arts, such as sound recordings, films, or books to prevent others to sell or distribute those items without the permission of the copyright owners.

  3. Trademarks are any signs which distinguish the business products or services offered by an individual or a company, e.g. the apple logo

  4. Geographical indicators are naming to indicate geographical origin, such as champagne can only be called ‘champagne’ if the products are produced in France whilst in champagne in Italy is called ‘prosecco’.

  5. Registered designs protect the design of the product itself, e.g. the design of the iPhone.

In the UK, to register your IPRs is relatively easy via the UK/European IPR office, but the regulations are currently being adjusted due to Brexit – make sure to update with the current updates.

Shaun shared his perspective on using IPR to leverage private businesses to get funding from investors. First, he marked that it is crucial to a good brand recognition and having it registered as a trademark, i.e. your own logo and company name – if you have a well-known brand, people associate certain attributes and values to your company. This gives you a marketing confidence to pitch funding to investors. Second, patent can also attract investors to give you equity funding, and in many jurisdictions, we can even use the patent to acquire funding, such as to borrow money. Moreover, IPRs can be the key market differentiators of our businesses if our competitors don’t have any IPRs since having a patent, copyright and/or trademarks also gives us market dominance (higher market share).

The panellists also shared some useful tips with regards to IPR submissions:

  1. Do make sure that your invention is kept secret. - Do get the outer parties sign the non-disclosure agreement (NDA) if you are about to discuss your secret information – if possible, involve lawyers to ensure that the NDA can be enforced in many different countries. - Do register a patent only after your invention has been properly tested, thus not risking exposing your secret information to your competitors.

  2. Do attain an international level IPR protection if money is not a problem – it can be done through an international organisation, such as the World Intellectual Property Organization (WIPO).

  3. Do check that your inventions or work of arts are indeed globally novel before filing your claim – use the internet search engine.

  4. Do not expose your inventions or works of arts in public too long before the filing, e.g. In Indonesia, you must not publish your invention longer than six months to file your patent, otherwise you will forever lose your right to claim one.

  5. Do watch the market for potential IPR infringement (offensive approach). If you find any breach, you can start by sending a warning letter before pursuing a litigation claim, which can be done under a civil or criminal law in Indonesia, but there is no criminal sanction for IPR infringement in the UK. Another viable option is through mediation or arbitration – especially for an international IPR dispute, provided both parties agree, the international arbitration is a recommended viable choice due to: (i) the private nature of arbitration, thus preventing some third-party potential rivals to copy the information, and (ii) the ability to invite an arbitrator with certain technical expertise. However, some cases cannot be arbitrated, such as challenging the validity of and IPR protection in certain country – such cases will need the local authority to judge.

Finally, having discussed the exclusivity function of IPRs, the panel also discussed how IPRs, specifically a patent may help the establishment of the COVID-19 vaccines. A patent can encourage private big pharmaceutical companies to compete in creating the vaccines faster. Furthermore, having a patent will help to secure the funding as developing a vaccine is expensive. However, there is an overriding law that allows the government to intervene by paying some money to the company with the patent, probably at a discount, e.g. at 70% of the market rate, for the sake of the greater good, i.e. to ensure that the vaccines are widely available to the public at an affordable price. Furthermore, the developed countries can also be enforced to enact the cross-country licenses for the developing countries to mass produce the vaccines.

Today’s discussion has been super insightful – Both NIF and YIPA are grateful to have each other, and sincerely thank the expert panellists and the audience for the massive supports to this event!

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