Thursday, February 13, 2020

Indonesia to revoke controversial patent working requirements

Image result for indonesia Omnibus law on Job Creation
Indonesia plans a new commercial law to boost foreign investment called the Omnibus law on Job Creation. Backed by the President, the final draft bill consists of 79 laws, 15 chapters, and 174 articles as confirmed by the head of Parliament, Puan Maharani when she received the copy of the final draft bill yesterday.  

It contains one IP provision that Art 20 of Patent Law is revoked. This will bring an end to the endless debate about whether or not a patent can be revoked if it is not used in Indonesia.  See here for the previous details and debate. All the subsidiary legislation and procedures will also fall away. Tech companies will be pleased about the removal of this uncertainty.

Wednesday, February 12, 2020

Vietnam rises up the IP rankings

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The U.S. Chamber of Commerce released its Global Innovation Policy Center (GIPC) annual report. Vietnam jumped among Asian country's score for IP protection. The report uses a variety of indicators to measure 53 countries. Although ranked relatively low, Vietnam jumped the most, up to 42nd position below Singapore, Philippines and Malaysia but above Thailand and Indonesia. 

A variety of improvement factors were cited: legislation that increased IP damages awards, participation in many international IP treaties (e.g. the CPTPP), stronger penalties for commercial scale IP infringement, growing integration with international IP platforms like the E.U.-Vietnam Free Trade Agreement, long-standing efforts to coordinate IP enforcement, using a comprehensive strategic approach to national IP policy, increasing IP registration volumes. Weaknesses remain in protection of life science patents with a challenging enforcement environment, gaps in copyright protection, including for online infringements, high physical counterfeiting rates and rampant online infringement, alongside generally poor enforcement with penalties insufficient in practice as well as administrative inaction.

Vietnam's National Assembly will ratify the Vietnam-EU free trade agreement at next meeting meeting, announced the Minister of Industry and Trade Tran Tuan Anh this week. It contains an extensive IP chapter. 

There is no doubt of the political will to improve IP in Vietnam; the main challenges appear to be practical and local implementation.

Monday, February 10, 2020

Data rules in SEA - regional v national

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Data privacy in SE Asia is growing in importance. The Philippines, Malaysia, and Singapore have data protection laws, as well as an established a data privacy regulation authority. Thailand has its own data protection law, while Indonesia is awaiting its Parliament’s approval, and in the meantime issuing regulations to fill the gaps in data protection and data privacy.

The ASEAN Framework on Digital Data Governance is the structure under which the 10 ASEAN member states handle cooperation on data issues.  Current proposals include a data classification framework and a cross-border data flow mechanism for ASEAN. ASEAN data privacy authorities have started regular meetings. 

Beyond this in the region the Asia-Pacific Economic Cooperation (APEC) is a growing force in data privacy.  Asia Pac. has 45 percent of the world’s online citizens, 2 billion people and growing fast. APEC operates its Cross-Border Privacy Rules (CBPR) allows participating businesses and other organizations to develop internal rules and policies under the CBPR program. The organisation then seeks a seek a certification within the country, which enables them to demonstrate data security within ACEC CBPR countries. It’s purpose is to help organisations achieve higher levels of security. It doesn’t guarantee comply with any country’s laws but protects in the case of a breach by showing a high level of security.  Singapore has now joined, the first SE Asian country to do so.  Only  the US, Japan and Singapore are operating the system, but other APEC countries are planning to join. For example the National Privacy Commission (NPC) recently submitted the Philippines’ letter of intent to join the CBPR System.

So in SE Asia data officers need to keep an eye on national and regional developments. A patchwork of regional overlays is likely to sit above national laws. 

Friday, February 7, 2020

Indonesia ratifies Beijing Treaty and Marrakech Treaty

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Indonesia has ratified the Beijing Treaty and the Marrakech Treaty, two multilateral copyright agreements. The Beijing Treaty covers audio-visual performances, especially reproduction, distribution and rental of these copyright works. The Marrakech Treaty allows the reproduction and transfer of specially-adapted products the visually or impaired (apparently over 3.5 million people in Indonesia) by establishing a set of limitations and exceptions to copyright law.

More specifically the Beijing Treaty protects performers by granting 4 rights: (i) the right of reproduction (direct or indirect) of the fixation of their audio-visual performance; (ii) the right of distribution of copies of the fixation of their audio-visual performance; (iii) the right commercial rental of copies to the public; and (iv) the right of making available to the public, which nowadays relates more to wireless (or wire) internet access including streaming and downloads.  
There are also rights over unfixed live performances  - the right to broadcast, communicate to the public (apart from broadcasts, i.e. online) and the right of fixation. The Treaty also give performers moral rights, including the right be identified as the performer and the right to object to distortion, mutilation or prejudicial modification. There are rules on transferring rights to producers, incorporation of the Three Step Test for exceptions and limitations purposes well as remedies against circumvention of technological measures (e.g. encryption) used by performers.
Indonesia has a vibrant creative economy and performers struggle to get fairly paid. Indonesia is the thirtieth country to ratify the Beijing Treaty, fulfilling the minimum requirement for it to come into force in April (despite the EU and US not having agreed to it).  
Both Treaties operate under the World Intellectual Property Organization (WIPO). Indonesia will therefore need to amend its copyright law to give effect to these.

Sunday, February 2, 2020

EU IP report downgrades Philippines despite uncertainty over enforcement

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The EU has dropped the Philippines from its list of countries involved in trade of counterfeit goods. The European Commission (EC) report showed that the country was removed from the Priority 3 list. The EC reports fewer IP complaints from stakeholders and the relatively higher importance of other countries for EU IP owners. So on the one hand this is good for the Philippines, but on the other it reflects that IP reports, like trade, can sometimes be a zero sum game; that is if others are attracting more IP interest, it counts as a loss. So this does not necessarily mean an improvement, more that EU trade with Philippines isn’t strong. Negotiations for an EU-Philippines trade and investment agreement were launched on 22 December 2015 and have continued off and on since then. 

In recent years the Philippines has improved its enforcement systems, with the NCIPR usually cited as a key breakthrough - see here. However the country still has problems with counterfeit and pirated products. Customs ineffectiveness is an oft cited problem, with the Customs IP recordal system largely ineffective at leading to seizures. 

A key new issue for SE Asian countries is Trump’s trade deal with China, since it has a focus on preventing counterfeiting goods leaving China, as exports. Around 75% of fakes in SE Asia come from China (UK government data).  The EU reported that the Philippines continues to have a healthy trade in fake goods in a number of areas including leather articles, handbags, pharmaceuticals, footwear, games, toys, sports equipment and fake jewelry. However this data is now believed to be very old. 

Meanwhile on the positive side Philippines is one of the leads on enforcement under the 2016-2025 ASEAN IP Action Plan so its IPO continues to be at the forefront of activity in the region.  

Thursday, January 30, 2020

Major SE Asian piracy site shuts and reopens

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Indoxxi is one of the most famous movie piracy sites in Asia. Alexa ranks it in the top 1000 websites worldwide, and top 100 in most Asian countries. An Indonesian piracy group, funded by online add click systems, operates vast numbers of illegal piracy websites offering foreign and Indonesian movies. In fact Indoxxi sites have been repeatedly closed, but they reopen offshore by domain hopping to new sites immediately. It has been flagged by the USTR as a notorious illegal piracy site. But no action has been taken by authorities other than site blocking. 

Then after several years of operation, Indonesia’s newly appointed Minister of Communications and Information (KOMINFO), Mr. Johnny Plate acted to shut down a large number of piracy sites in December, citing the need to protect creativity and investment. Then at the same time Indoxxi announced that to was closing down as of January 1st. Within days mirror sites with similar domains were up again. So its not clear if this was just a ploy to hide the fact that they would reopen and just dodge the KOMINFO blocking tools. Given that Indonesia blocks many times of non approved websites (gambling, pornography), it is not clear why piracy sites are so easily able to avoid the censors. 

Wednesday, January 29, 2020

Sanofi's TB patents dispute overflows to Indonesia

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Indonesia may be getting caught up in a TB medicine dispute. Sanofi has filed numerous patents for medicines combining two APIs, rifapentine and isoniazid. Both APIs are out of patent protection globally. Sanofi patents include the combination of the drugs including as child formulations and film coated tablets. Some countries granted them, others objected. For example the patent for a film coated tablet and dispersible formulation was objected to in India as being a combination of two existing drugs so not patentable there.

Sanofi’s strategy appears to have been to file multiple forms, but to accept that some may not be patented, in order to get others accepted. In Indonesia, the child formulations and film coated tablets patent was withdrawn in order to get the combination of isoniazid and rifapentine drugs accepted.

Activists in India including Médecins Sans Frontières are particularly vociferous given TB is a serious problem there and there are concerns whether such countries can procure generic combinations of the two APIs if a patent is granted. Sanofi is coming under pressure to surrender all of its patents for these compounds and formulations.

Monday, January 27, 2020

Myanmar TM system still not launched

Myanmar's new trademark system launch was supposed to take place in January. It was to start with a 'soft launch' to allow re-registration of marks previously deposited at the Registrar of Deeds. The full opening of the IP department is at present scheduled for World IP Day in April. See here for full background. 

However the start of January saw no progress and as we draw towards the end of the month, there is still no clear launch date. 

Wednesday, January 22, 2020

Chelsea FC wins battle with Indonesian registrant

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IPKomodo is pleased (the lizard must declare his interest as a Chelsea fan) to report success in the recent CHELSEA trademark dispute in Indonesia.  See here for background

A local registrant Hardiman had sued to invalidate two of Chelsea FC's marks as conflicting with his own. The Jakarta Commercial Court found against him.  The decision doesn't provide much insight; no clear rationale from the court why. If the mark was similar and prior it ought to be rejected. The proper course of action for Chelsea FC was to cancel Hardiman's mark, rather than wait for him to attack.  The court refused the Defendant' Chelsea FC's procedural objections. That is no surprise as there isn't much reason to suspect procedural errors. 

This case may have worked out because Chelsea is so famous the court could not side with a pirate. In the similarity comparison court probably found sufficient differences. Firstly the two marks Hardiman claimed against were CHELSEA FOOTBALL CLUB and CHELSEA FC. Whereas his marks are CHELSEA and CHELSEA with logo.  A difference from CHELSEA FOOTBALL CLUB could possibly be right, but it is more suspect to say that CHELSEA and CHELSEA FC are not similar. 

Chelsea FC may have a longer battle on as Hardiman has other Chelsea marks. many other Chelsea marks are on the register too.  But IP Komodo is happy with outcome if not the method of getting there. Unlike this weeks draw against Arsenal which IP Komodo is not at all happy about at all!