“In a sector heavily based on research and development, business actors in the medical industry must be able to distinguish each type of intellectual property rights to protect their interest properly.”
As a sector dedicated to resolving health problems, the medical industry is heavily based on scientific research and development. Considering how it is expected to provide the most efficient healthcare for the consumers, business actors in the medical industry are always competing to come up with innovations in an attempt to produce the best products. Therefore, the business actors in the medical industry must protect the intellectual property rights related to such products to ensure their exclusivity.
In Indonesia, the law has provided several regulations to protect the different types of intellectual property rights. The reason for the distinction between each regulation is because each rule purports to protect each type of intellectual property rights based on the respective products to which it is related. Therefore, the business actors must distinguish intellectual property rights accurately to take advantage of such protection by the law. This article shall henceforth serve to draw insight into each type of intellectual property rights related to the medical industry.
Before being sold to consumers, every medical product – pharmaceutical goods and medical devices alike – undergoes a specific process of production. The Law No. 13 of 2016 concerning Patent Rights (“Patent Law”) defines Patent Right as an exclusive right granted by the state to an inventor for his/her invention in the field of technology. Furthermore, an invention is defined as an inventor’s idea that is poured into any activity of solving a specific problem in the field of technology, either in the form of a product or process, or improvement and development of a product or process.
The Patent Law also provides legal protection towards Simple Patent Right, which is defined as any invention in the form of a product or device, which is novel and possesses practical use -alue because of its shape, configuration, construction, or components. Compared to the Patent Right, Simple Patent Right is allowed to take the form of a modification or adaptation of existing innovation, rather than being a completely distinct innovation inherently.
Patent Rights in the medical industry mainly capture the essence of novelty in how a product can resolve a health problem efficiently, or more efficiently than the other products. For example, Patent Rights can protect the technical steps of creating a new medicine for cardiovascular diseases. Throughout history, medicine for cardiovascular diseases has been reinvented time and time. However, as long as the production process or the way it solves the same problem differs, a new medicine for the same disease can be protected by a different Patent Right.
Furthermore, Patent Rights are especially relevant to the innovations of medical devices, such as Electronic Medical Devices (EMD), because such innovations are mostly breakthroughs in terms of the technical production process or practical usage. The Patent Rights can apply to how the medical devices are produced and/or intended to be utilized.
Once the technological aspect of producing a product has been settled, business actors must come up with the aesthetical design of the product. The Law No. 31 of 2000 concerning Industrial Designs (“Industrial Designs”) defines Industrial Design as a creation on the shape, configuration, or the composition of lines and/or colors which gives an aesthetic impression and can be realized in a two-dimensional and/or three-dimensional pattern and used to produce a product, goods, industrial commodity, or a handy craft.
An Industrial Design is remarkable because the business actors must ensure that the products are visually pleasing to prospective consumers. For example, the unique shape and color of the packaging of medicine may be the critical point which sets it apart from the generic form of the same type of medicine in the market. Therefore, the Industrial Design protects the designer’s creativity in the visual art of the packaging and/or products.
Where the business aspects are concerned, Trademarks are vital to building a reputation of the business actors. The Law No. 20 of 2016 concerning Marks (“Marks Law”) defines Mark as a sign in the form of a picture, name, word, letters, numerals, composition of colors, in a two-dimensional and/or three-dimensional form, sound, hologram, or a combination of said elements, having distinguishing features and used in the activities of trade in goods or services. Furthermore, Trademark and Service Mark are defined as a Mark that is used on products or services traded by a person or a legal entity to distinguish the products or services from other products or services of the same kind.
Most of the times, consumers are less concerned with the scientific aspects of medicine, such as the ingredients or the know-how of production. Laymen consumers usually distinguish products of similar qualifications by the familiarity of the producers. Therefore, to ensure the familiarity and thus the success of the products, business actors need to ensure that they have marked the products with their respective Trademark, whose exclusivity can be protected by the Marks Law.
Author: Yohana Veronica Tanjung
Gaffar & Co., Indonesian Boutique Law Firm which specializing and focus on commercial law areas include Intellectual Property.
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