Indonesia recognizes the importance of the development of biotechnology for the sake of economic growth in terms of present and future investment. In so doing, Indonesia has facilitated the protection of biotechnology through its IP Laws, particularly its Patent Regulations, among these – Law No. 14 Year 2001 (Law No. 14) and Law No. 29 Year 2000 (Law No. 29).
Law No. 29 regulates the protection of plant variety resulting from genetic engineering and Law No. 14 concerns the patent regulation protecting the process to produce the variety. Being guided by TRIPS article 27 paragraphs (2) and (3), the Directorate General of Intellectual Property Rights (DGIP) has regulated that Indonesia may exclude patents for invention that are immoral in order to protect the health of human beings, animals or plants as well as to avoid serious damage to the environment. Article 7 (a) and (b) of Law No. 14 states clearly the biotechnology products that will not be granted patent rights in Indonesia:
- Any method applied to all living creatures (human and animals, except for micro-organisms) e.g.:
- Medication; or
- Any biological process which is essential in producing plants or animals, except non-biological processes or microbiological processes
Therefore based on the above provision, Indonesia will not grant patent to transgenic animals or mammals, for example cloned animals, as well as transgenic plants. This differs to practices in other neighbouring countries such as Japan and Vietnam that allow transgenic animals and transgenic plants to be granted with patent rights. Although Indonesia does not grant patent to living creatures except for microorganisms, apart from being protected by the Patent Regulation, microorganisms that are used in the process or production process can also be protected under the Trade Secret regulations, namely Law No. 30 Year 2000 concerning Trade Secrets. Therefore biotechnology, as in the product by process, microorganisms and stem cells, are protected under the Indonesia Patent Regulations. However, other aspects of biotechnology, such as the treatment and medication methods to living creatures, transgenic animals and plants, isolated protein and human body cannot be granted patent.
Nonetheless, the importance of biotechnology and its protection by the Intellectual Property Rights Regulations do not always coincide. One great example of this is avian influenza pandemic where the clash between the importance of biotechnology development for human life and IPR protection was evident. This pandemic was caused by the avian influenza virus, which then mutated and became a virus infecting and endangering human life. The human body never infected by the avian influenza (H5N1) virus basically had no anti-bodies to neutralize the said virus and therefore infection was fatal. The increasing number of deaths caused a global heath security threat and frantic frenzy. Scientists around the world were attempting to create vaccines, but in order to do so, would require samples of the virus itself. Indonesia possessed some samples of this virus, what with the widespread pandemic on its soils but the government was reluctant to release these samples.
The reluctance of the Indonesian government to share the bird flu virus was because of their concern of the impact of IPRs especially patent. It has been argued that the Indonesian government was overly cautious because of their fear that the result of researches based on the specimen of the H5N1 virus provided, would be used for research by third parties and in the end produce a patented vaccine; therefore disallowing the production of the said vaccine locally. This would then lead to the local Indonesians affected by H5N1 experiencing difficulty in actually accessing the patented vaccine for various reasons such as price and proximity. However the Indonesian government is working towards opening the genetic map data of the bird flu virus, with safeguards in place, to allow access and use for research.
As Indonesia continues to realize the importance of biotechnology, not only within its agricultural arena, but also as an economic growth tool, the protection it awards within the area of interest as well as its development will improve. This will further encourage external investment as well as greater understanding of the patentability of biotechnology. Indonesia is for continual improvement in this area.