Tuesday, September 27, 2011

Criminal patent infringement in Thailand and Indonesia

Patent enforcement in South East Asia's emerging markets is still a rarity but cases are becoming more frequent. IP Komodo is intrigued by the use of the criminal system for patent enforcement. Whilst alien to most common law jurisdictions, it is possible in some civil jurisdictions.   
Thailand operates a criminal patent enforcement system. There are a dozen or so cases per year, but it really only works for clear cut infringement, because there are difficulties in proving the "wilful" infringement requirement. See here for a Rouse newsletter from Thailand which on page 8 describes a criminal patent raid, complete with photos.

Indonesia operates a criminal patent enforcement system too. There have been several police raids, particularly concerning motorcycle components. Typically such cases reach a settlement, recognising the difficulty in proving wilful infringement, and because most cases are secondary liability cases since the products are imported.  So far no cases have reached prosecution at court. That is no surprise because unlike Thailand which has its specialist IP court, where cases can be carefully decided by expert IP judges, Indonesia's regular criminal courts are entirely unsuited to hear patent cases. IP Komodo must also confess that they are pretty unsuited to hear any IP cases at all, and sadly hardly any IP cases make trial, even clear criminal counterfeiting and piracy.

It is an interesting question whether public authorities really ought to be handling patent cases, since these are usually more like commercial property disputes. Patent protection unlike copyright is not generally felt as a matter of public policy to be deserving of criminal attention. Although it is arguable that protecting innovation and technology is as deserving as protecting artistic freedom and creativity. But IP Komodo worries that given the complexity of patent disputes, administrative bureaucrats like the police are not really equipped to handle such cases.

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