Plant Variety Protection in Indonesia

As a member of the World Trade Organization, Indonesia is bound to provide a national regulation regarding the Plant Variety Protection (PVP) as well as the other scopes of Intellectual Property Rights. The article 278 paragraph 3 of Agreement on the Trade-Related Aspects of Intellectual Property (TRIPs) stipulates that its member shall provide for the protection of plant varieties either by patent or by an effective sui generis system or by combination thereof. Due to the above obligation and also to increase the role of local and foreign players in the agriculture industry, in the year of 2000 the Indonesian Government has chosen to specifically regulates the Plant Varieties Protection by the enactment of the Law No. 29 Year 2000 concerning Protection of Plant Variety.

Subsequent to the enactment of Law No. 29 Year 2000 concerning Protection of Plant Variety, the plant varieties resulting from plant breeding is protected under the PVP regulations, meanwhile the process to produce the said variety is protected under the Patent regulations. Unlike the other scopes of Intellectual Property Rights such as Patent, Trademark, Copyright and Industrial Design, Plant Variety Protection is not regulated by Directorate General of Intellectual Property Rights but it is regulated by the Office of Plant Variety Protection under the Department of Agriculture Republic of Indonesia (hereinafter shall be referred as Office of PVP). Therefore, to obtain the protection of PVP, a plant breeder and/or a right owner must register their new variety of plant with the Office of PVP.

Even though the regulations regarding PVP have been enacted since the issuance of Law No. 29 Year 2000 concerning Protection of Plant Variety, due to the lack of implementing regulations and supporting systems, the said regulations could not be implemented right away.

Since 2005, the protection right for plant variety could finally be obtained due to the establishment of Office of PVP as the authorized government institution responsible for the protection of plant variety and issuance of supporting and implementing regulations, namely Government Regulation No. 14 Year 2004 concerning Conditions and Requirements for Transfer of Plant Variety Protection Rights and Exploitation of the Variety Exploited by the Government, Ministerial Decree No. 446/Kpts/Hk.310/7/2004 concerning Conditions and Requirements of Registrations of Plant Variety Protection Consultant, Ministerial Decree No. 442/Kpts/Hk.310/7/2004 concerning Conditions and Requirements of Application and Registration for Plant Variety Protection Right, etc. Accordingly, the Office of PVP has received 7 Plant Variety Protection applications in 2005 and another 7 applications in 2006. On 5 January 2007, the Office of PVP has issued the 1st Certificate of Registration of PVP in Indonesia under Registration No. 001/Pnrm/TT/2006, and on 7 February 2007 the said Certificate has been given to the Right Holder, namely PT. Arara Abadi for its Registered Plant Variety, i.e. Eucalyptus pellita.

According to Article 1 paragraph (2) Law No. 29 Year 2000 concerning Protection of Plant Variety, the protection right for plant variety is an exclusive right granted to the breeder and/or the right owner of plant variety to use by itself the result of breeding or give permission to other parties to use the variety for a certain period. The protection is given to a new plant variety produced by a plant breeder through plant breeding. The aforesaid new plant species has to be unique, uniform, stable and given a new name.

The duration of protection for plant variety based on Article 4 Law No. 29 Year 2000 concerning Protection of Plant Variety is 25 years for annual plants and 20 years for perennial plants commencing from the granting date of the PVP registration. Different from the other scopes of Intellectual Property, in PVP the applicant can have temporary protection for their new variety of plant which application for registration has not been granted by the Office of PVP. This temporary protection is given from the filing date when the applicant has fulfilled the entire formality requirements by the Office of PVP until the said application is granted (Article 4 Paragraph 3 Law No. 29 Year 2000 concerning Protection of Plant Variety).

Further to the issuance of Ministerial Decree No. 446/Kpts/Hk.310/7/2004 concerning Conditions and Requirements of Registrations of Plant Variety Protection Consultant, 27 PVP Consultants were appointed. Through the appointment of the PVP Consultants, the foreign companies may be able to file a PVP Application in Indonesia through the appointed PVP Consultants. This is in accordance with the provision on Article 12 Paragraph 3 Law No. 29 Year 2000 concerning Protection of Plant Variety, which regulates that for foreign applicant or for the applicant who is not domiciled in Indonesia, the application has to be filed through a PVP Consultant as its proxy.

The procedure of filing a PVP application for registration is similar to the filing procedure of the other IPRs; the said application will have to go through formality examination, publication and substantive examination. After a PVP Application is filed, the Office of PVP will conduct a formality examination regarding the completeness of the documents submitted by the applicant as pursuant to the provision of Article 14 of Ministerial Decree No. 442/Kpts/Hk.310/7/2004 concerning Conditions and Requirements of Application and Registration for Plant Variety Protection Rights. Within 30 working days subsequent to the filing date of the application, the Office of PVP will issue its decision, i.e.:

The application has completed all the required documents and therefore is accepted; or

The application has not completed the required documents and therefore the applicant is given 3 months (commencing from the date of the notice) to fulfill the said requirements, which period can be extended for another 3 months upon request of the applicant.

Upon completion of the formality requirement, the Office of PVP will issue a written notice, which will be deemed as the evidence of temporary protection for the relevant plant variety.

The applicant can amend its application at anytime before this examination. The applicant can withdraw its application at anytime during the examination.

Upon completion of the formality requirements, the Office of PVP will publish the application within for 6 months as of filing dates for regular application and 12 month for the application filed with Priority Rights at the latest at the PVP Official Gazette for the period of 6 months. Within the said period, any party can file opposition against the relevant application. In such event, the Office of PVP will forward a copy of the opposition writs to the applicant, and the applicant can file its written response to the opposition within 14 working days commencing from the receiving date of the aforesaid copy of opposition writs.

Within 1 month after the expiry of the publication period, the applicant has to file a request for substantive examination. The substantive examination has to be completed within 24 months commencing from the filing date of the request for substantive examination.

Upon completion of the substantive examination, the Office of PVP will issue its decision whether the application is granted or refused. If the application is granted the Office of PVP will give the Certificate of PVP Right to the Applicant, and the registration will be recorded in the General Register of PVP and announced in the Official Gazette of PVP. In other case, if the application is refused, the application is allowed to file an appeal to the Appeal Commission within 3 months commencing from the date of the Notice of Refusal.

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