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IP Consultant in Indonesia: Understanding the Government Regulation Number 100 of 2021

posted 7 months ago

Author: Fitri Astari Asril

The rapid development and advancement of technology have increasingly demonstrated that intellectual property (IP) is an important aspect of business and a personal attribute. IP contributes to the building of reputation for developed businesses and helps to maintain a competitive advantage. In certain provisions, actions related to intellectual property must be accompanied and/or carried out by an IP consultant, such as Article 28 of the Indonesian Patent Law, which stipulates that patent applications submitted by applicants who are not domiciled or do not have a permanent residence in Indonesian territory must be submitted through an IP consultant who is domiciled or has a permanent residence in Indonesia (Article 1 number 7 of the Patent Law defines an IP consultant as an agent). Engaging the services of an IP consultant can prove invaluable in identifying, safeguarding, and optimizing the intellectual property that underlies your business.

An IP consultant is defined as a person who has expertise in the field of intellectual property and is registered as an IP consultant, and specifically provides services in the field of knowledge and management of intellectual property applications. Their role is to offer services that encompass the management and application of intellectual property[1]. The guidelines governing IP consultants are established within Government Regulation Number 100 of 2021, which supersedes the previous Presidential Regulation Number 84 of 2006 concerning procedures for appointing intellectual property consultants and Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant.

In regard to the above, the requirements for appointment as an IP consultant are as follows[2]:

  1. Indonesian citizen;
  2. devout to God Almighty;
  3. physically and mentally healthy;
  4. having a permanent residence in the territory of the Republic of Indonesia;
  5. at least holding a bachelor’s degree;
  6. at least 25 (twenty-five) years old;
  7. proficient in English;
  8. not employed as a civil servant, state official, or holding other positions that are prohibited by law and regulations;
  9. has undergone IP Consultant training;
  10. has passed the IP Consultant exam;
  11. has completed an internship or worked for at least 24 (twenty-four) consecutive months at an IP consultant’s office or intellectual property management unit; and
  12. has never been sentenced to imprisonment based on a final court decision for committing a crime punishable by imprisonment of at least 5 (five) years or more.

To clarify, it is not necessary to be a law graduate to be an IP consultant, nor does one have to be an advocate sworn in Indonesia. This has been applied in both prior regulation and current regulation regarding IP consultant. However, upon closer examination, differences can be found when compared to previous regulations such as Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant and Presidential Regulation Number 84 of 2006 concerning procedures for appointing intellectual property consultants.

No

About

Government Regulation Number 2 of 2005

Government Regulation Number 100 of 2021

1.     

Definition

An Intellectual Property (IP) Consultant is a person who has expertise in the field of Intellectual Property, specifically providing services related to the filing and management of Intellectual Property applications under the Directorate General’s management. They are registered as an IP Consultant under the Directorate General.[1]

Intellectual Property Consultant is a person who has expertise in the field of intellectual property and is registered as an Intellectual Property Consultant, specifically providing services in the field of filing and managing intellectual property applications[2].

 

 

 

2.     

Requirements for the appointment of an IP consultant.

To become an Intellectual Property Consultant, one must fulfill the following requirements:[3]

a.    citizen of the Republic of Indonesia;

b.    have a permanent residence in the territory of the Republic of Indonesia;

c.    hold an undergraduate degree (S1);

d.    proficient in English;

e.    not a civil servant;

f.     pass the Intellectual Property Consultant training.

 

In this regulation, criminal sanctions for Intellectual Property Consultants were stipulated as dishonorable termination, which was imposed by a legally binding court decision, for committing a crime that carried a penalty of imprisonment for four years or more.[4]

The updated regulation introduces several significant requirements, including:[5]

a.    a minimum age of 25 years

b.    not a civil servant or state official status or any other prohibited positions as defined by law

c.    completion of Intellectual Property Consultant training and passing the exam

d.    completion of at least 24 months of internship or work experience in an intellectual property consultancy office or an intellectual property management unit after obtaining a bachelor’s degree

e.    no record of imprisonment for at least 5 years or more as a result of a legally binding court decision.

 

3.     

Retired employee of the Directorate General of Intellectual Property.

The regulation does not mention anything about retired Indonesia DGIP employees being eligible for appointment as Intellectual Property Consultants.

The regulation specifies that retired employees of Indonesia DGIP can be appointed as Intellectual Property Consultants with the following provisions[6]:

a.    The employee has worked for 20 years at Indonesia DGIP.

b.    Has passed a period of 1 year since the retirement date stated in the retirement decree.

4.     

Obligation

There is no requirement for individuals to become a member of the professional organization for intellectual property consultants as per the regulations.

It is mandatory to become a member of the professional organization.

5.     

Formation of Supervisory Council.

There is no Supervisory Council for IP Consultants.

The Minister has established a Supervisory Council for IP Consultants, which is responsible for supervising and reviewing reports of professional obligation and code of ethics violations by IP consultants, monitoring and evaluating their performance, proposing the dismissal of IP consultants, and recommending extensions to the retirement age of IP consultants.[7] .

6.     

Professional Organization.

 

There is no regulation regarding the professional organization in the field of IP. In this regulation, it is referred to as a higher education institution that is appointed by the Directorate General of IP as a partner to conduct IP consultant training.

 

The government regulation recognizes the professional organization for IP consultants, referred to as “Organisasi Profesi,” as a legal association that operates independently to advance and safeguard intellectual property in Indonesia. This provision also places the professional organization on par with higher education institutions, authorizing it to provide IP consultant training based on a curriculum established by the Minister.[8]

IP Consultants may be honorably dismissed due to[9]:

a.    Their own request;

b.    Their physical and/or mental health being disturbed, making them unable to perform their profession;

c.    Failure to meet the criteria as referred to in Article 10 paragraph (2);

d.    Passing away;

Changes in nationality, no longer having a permanent residence in the territory of the Republic of Indonesia, and/or becoming a civil servant as referred to in Article 3 letters a, b, and e, which have been reported in accordance with the provisions in Article 8 paragraph (8).

The Intellectual Property Consultant is required to join a professional organization, namely the Indonesian Intellectual Property Consultant Association. This professional organization will establish and enforce a code of professional ethics and is accountable to the minister and the supervisory council by providing activity reports every 6 months. Based on Article 32 paragraph (1) of this regulation, the Association of Intellectual Property Consultants (AKHKI) is recognized as the Indonesian Intellectual Property Consultant Association. [10]

7.     

Dismissal of an Intellectual Property Consultant with honor.

 

Additions have been made regarding honorable dismissal due to:

1.    Including the retirement age limit for Intellectual Property Consultants, which is 70 years old (although this can be extended on the condition of receiving a good evaluation based on performance, never violating the professional code of ethics, and being physically and mentally healthy as confirmed by a doctor’s statement).

2.    Being honorably dismissed if the consultant fails to perform their duties continuously for more than 3 years.

 

[1] Article 1 point 1 of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[2] Article 1 point 1 of Government Regulation Number 100 of 2021 concerning IP Consultants

[3] Article 3 of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[4][4] Article 12 paragraph 1 letter b of of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[5] Article 3 letter f,h,i,j,k,l of Government Regulation Number 100 of 2021 concerning IP Consultants

[6] Article 4 of Government Regulation Number 100 of 2021 concerning IP Consultants

[7] Article 1 point 2 in conjunction with Article 17 of Government Regulation Number 100 of 2021.

[8] Article 1 point 3 in conjunction section VI regarding Professional Organization of Government Regulation Number 100 of 2021 concerning IP Consultants

[9] Article 11 of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[10] Article 13 paragraph 2 letter e in conjunction with Article 32 paragraph (1) of Government Regulation Number 100 of 2021 concerning IP Consultants

The aforementioned points lead us to conclude that there are several significant changes that need to be pay attention to regarding IP consultants, inter alia: the minimum age requirement for appointment (25 years old), the requirement for a 24-month internship at an IP-related workplace, the maximum age limit for IP consultants (70 years old), the obligation to join a professional organization, and the establishment of a supervisory council mandated to oversee IP consultants in Indonesia.

The Role of IP Consultants in Business and the Development of Intellectual Property

The role of an IP consultant is crucial in the protection of intellectual property both nationally and internationally. In addition to providing IP services, they are responsible for spreading awareness and knowledge about intellectual property to the public in order to improve the IP system in Indonesia. The job of an IP consultant includes conducting IP searches and analyses, advising clients on how to protect their intellectual property assets, providing legal advice on IP disputes, developing strategies to manage and monetize IP assets, and staying up-to-date with changes in IP laws and regulations. Hiring an IP consultant can provide many advantages such as expertise, cost-effectiveness, competitive advantage, and international expertise. This can help individuals and businesses protect their intellectual property assets and maximize their value while reducing risks associated with IP infringement or mismanagement.

 

[1] Article 1 point 1 of Government Regulation Number 100 of 2021 concerning IP Consultants

[2] Article 3 of Government Regulation Number 100 of 2021 concerning IP Consultants

[3] Article 1 point 1 of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[4] Article 1 point 1 of Government Regulation Number 100 of 2021 concerning IP Consultants

[5] Article 3 of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[6][6] Article 12 paragraph 1 letter b of of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[7] Article 3 letter f,h,i,j,k,l of Government Regulation Number 100 of 2021 concerning IP Consultants

[8] Article 4 of Government Regulation Number 100 of 2021 concerning IP Consultants

[9] Article 1 point 2 in conjunction with Article 17 of Government Regulation Number 100 of 2021.

[10] Article 1 point 3 in conjunction section VI regarding Professional Organization of Government Regulation Number 100 of 2021 concerning IP Consultants

[11] Article 11 of Government Regulation Number 2 of 2005 concerning Intellectual Property Consultant

[12] Article 13 paragraph 2 letter e in conjunction with Article 32 paragraph (1) of Government Regulation Number 100 of 2021 concerning IP Consultants

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