..:: ANDRATI SUKMANINGSIH - Intellectual Property Right

TRADE SECRET

GENERAL PROVISION

As a developing country, Indonesia should make efforts to create firm competition in the business circles. It is in line with the global conditions in the areas of trade and investment. Such competitiveness have been long identified in the system of the Intellectual Property Rights, for instance Patents. In Patents, as a compensation for the exclusive rights which is granted by the State, the inventor shall reveal the invention.

The existence of the protection will encourage the emergence of new findings or inventions, which, although they are treated as secrets, they still obtain legal protection for the ownership, control and utilization by their inventors.

In order to promote industries which are capable of competing in the scope of national and international trade, it is necessary to create a climate which encourages creations and innovations of society by providing legal protection against the Trade Secret as part of the system of Intellectual Property Rights;
Trade Secret shall be the information which is not identified by the public on the technology and/or business which has economic value, because it is useful for business activities and whose secrecy is safeguarded by the owner of the Trade secret.
License shall be the permit which is granted by the holder of the Trade Secret to another party through an agreement based on the granting of rights (rather than a transfer of right) to enjoy economic benefit of a certain Trade Secret which is protection for a certain period and under certain requirements.

SCOPE OF TRADE SECRET

The scope of the Trade secret covers methods of production, processing, sale or other information in the area of technology and/or business which have economic value and are not identified by the general public.
The Trade secret obtains protection, if the information is secret in nature, has economic value, and its secrecy is strictly safeguarded through proper efforts.
The information is considered secret, if it is identified by certain parties only or it is not identified by the general public.
The information is considered having economic value, if the nature of secrecy of the information can be used to carry out activities or business which are commercial or can economically increase profits.
The secrecy of the information is considered having been safeguarded, if the owner or the parties who control it have taken proper and reasonable steps.

RIGHT OF OWNER OF TRADE SECRET

The Owner of the Trade Secret has the following rights:

To use his own Trade Secret;
To grant licenses to or prohibit other parties from using the Trade Secret or revealing the Trade Secret to any third party for commercial interests.

Unlike the agreement which becomes the basis for transfer of the Trade Secret, the License only grants rights in a limited way and within a limited period. Thus, the License is granted for the application or use of the Trade Secret within a certain period only. Based on the consideration that the Trade Secret is secret from other parties, the License is carried out by sending or being directly assisted by experts who can safeguard the Trade secret

TRANSFER OF RIGHT AND LICENSE

Transfer of Right

The Trade secret Right can change in ownership or be transferred by:

inheritance;
grant;
testament;
written agreement; or
other causes which are justified by laws.

License

The Owner of the Trade Secret Right has the right to grant a license to another party based on the license agreement to execute the acts ON BEHALF OF THE Owner of the Trade Secret Right, except otherwise stated.
The License Agreement shall not contain provisions which can create consequences harmful to Indonesia’s economy or provision which can create unsound business competition as stipulated in the existing regulation.

SETTLEMENT OF DISPUTE

The Owner of the Trade Secret or the License recipient can sue anyone who purposely and without rights execute the acts the Owner of the Trade Secret, in the following forms;

Lawsuit on compensation; and/or
Stopping all acts the right of the owner of the Trade secret.

The lawsuit is filed to a Public court.
In addition to the settlement by lawsuits, the parties can settle the dispute through arbitration or alternatives or dispute settlement.

“Alternatives of dispute settlement” are negotiations, mediations, conciliations and other method selected by the parties in accordance with the existing regulations.

VIOLATION OF TRADE SECRET

A violation of the Trade Secret also takes place, if anyone purposely reveals the Trade Secret, disavows the agreement or disavows written or unwritten obligations to safeguard the relevant Trade Secret.
Anyone is considered having violated the Trade secret of another party, if the person obtains or controls the Trade Secret by the method which a against the existing regulations.

CRIMINAL PROVISION

Anyone purposely and without right using the Trade Secret of another party or committing the act of violation of Trade Secret is sentenced maximally to 2 (two) years and/or fined maximally Rp.300.000.000.- (three hundred million Rupiahs).