Prior User Rights under Indonesian Patent Law: Between Recognition and Restriction

Get an understanding of the rights and restrictions of Prior Holders in patents based on Minister of Law Regulation No. 1 of 2025.

A Prior User is granted the right to continue implementing an invention, even if a patent for that same invention is subsequently granted to another party. However, this right does not apply if the Prior User's implementation of the invention is based on knowledge obtained from the description, drawings, examples, or claims contained in other party's patent application.

The Patent Law provides that protection is only given to a Prior User who acts in good faith and does not file a patent application for the same invention. The invention must genuinely results from activities conducted in good faith by the Prior User. This implies that the invention must have been developed independently, without reliance on information disclosed from another party’s patent application.

Further, the rights of a Prior User are limited in nature. Under the Patent Law, such rights apply only to the Prior User’s own implementation of the invention, and cannot be transferred to other parties, either through licensing or other forms of assignment. The only exception to this restriction is inheritance. This means that such transfer is only possible if the Prior User is an individual, as inheritance under civil law only applies to individuals, not to legal entities.

In addition, the rights of a Prior User are temporal in nature, as they remain valid only for the period of the patent protection over the same invention. Once the patent term expired, the Prior User’s rights also ended. It is important to emphasize that the Prior User rights are not exclusive rights like those granted under a patent. As such, the Prior User has no authority to prohibit other parties from implementing the invention.

1. A party that has previously implemented an invention, referred to as a ‘Prior User’, is still entitled to continue implementing such invention, even if a patent for the same invention is subsequently granted to another party.
2. The status of Prior User is not granted automatically, it must be requested to the Minister of Law for obtaining an acknowledgement letter as an evidence of such recognition.
3. Protection is only granted to Prior User who act in good faith, which is the one who implement the invention independently without relying on information from another party's patent application.
4. Prior User rights are limited in nature, where they are non-transferable except by inheritance, only remain valid for the period of patent protection, and are non-exclusive, meaning they cannot be used to prevent others from implementing the invention.
5. The patent holder or their representative may submit written opinions and/or objections to the Prior User application, which will be considered by the examination team during the substantive examination.
6. An acknowledgment letter issued in recognition of a Prior User cannot be used as grounds for the deletion of a patent.

In the patent system, there is a recognized principle that a party who has previously implemented an invention retains the right to continue using that invention, even if a patent for the same invention is subsequently granted to another party. This principle is known as the prior user right. The provisions governing prior users are stipulated in Law No. 13 of 2016 on Patents, as last amended by Law No. 65 of 2024 (“Patent Law”).

The Patent Law requires that further provisions concerning prior users to be regulated under the Minister of Law regulation. After eight years since the enactment of Patent Law, the Minister of Law has finally issued the implementing regulation on prior users through the Minister of Law Regulation No. 1 of 2025 on Prior Users (“MoL Regulation 1/2025”).

MoL Regulation 1/2025 provides an explicit definition of a prior user, which was not previously stipulated under the Patent Law. MoL Regulation 1/2025 defines a prior user as a party who implemented an invention before the same invention was filed as a patent application (“Prior User”).

It should be noted that recognition as a Prior User is not automatic. A party claiming to be a Prior User must submit an application to the Minister of Law through the Directorate General of Intellectual Property (“DGIP”). If the application is approved, the recognition is granted in the form of an acknowledgement letter of Prior User, which serves as an administrative proof of protection for the implementation of the invention.

The provisions for applying as Prior User are regulated in detail under the MoL Regulation 1/2025. An application to obtain recognition as a Prior User must be filed in Indonesian language to the Minister of Law, either directly by the applicant or through an Intellectual Property Consultant as their authorized representative. The application may be submitted electronically via the official website of DGIP, or non-electronically in written form.

It is important to note that each application may only be filed for a single invention. To ensure uniformity and completeness of information, the Minister of Law has stipulated a mandatory application form to be used by applicants. This form requires information including, among others,: (i) the applicant's full name, complete address, and nationality; (ii) the full name and address of the Intellectual Property Consultant, if the application is filed through a legal representative; (iii) the title of the invention; and (iv) the patent number and the specific claim number(s) of the invention that is purported to be the same as the invention for which the Prior User certificate is being requested.

In addition, when submitting an application for recognition as a Prior User, the applicant is required to attach the following supporting documents:

• proof of payment of the application fee;
• a power of attorney, in the event that the application is filed through an Intellectual Property Consultant;
• a description of the invention that has been implemented by the applicant;
• drawings related to the invention being applied for (if any);
• an explanation of the implementation activities that have been carried out by the applicant;
• evidence that the invention was implemented within the territory of Indonesia before the filing date of the patent application for the same invention by another party;
• a statement letter stating that the implementation of the invention was not derived from knowledge obtained through the description, drawings, examples, or claims in another party's patent application which serves as the basis for the request for recognition as a Prior User;
• evidence demonstrating that the invention for which recognition is sought is the same as the invention protected by the patent.

The examination of the application is conducted by the Minister of Law through the DGIP. This examination is carried out in two stages: administrative examination and substantive examination.

First, the administrative examination stage. The administrative examination is conducted within a maximum of 14 (fourteen) days from the filing date. If there are any incomplete documents, the applicant or their representative will be notified in writing and given 30 (thirty) days to complete them. If the incomplete documents are not completed within that period, the application shall be deemed withdrawn. Nevertheless, the applicant may still submit the required documents within 30 (thirty) days from the date of the notification letter concerning the deemed withdrawal of the application. This period can be seen as a form of supplementary opportunity for rectification prior to the forfeiture of the right to file the application. If the applicant still fails to provide the complete documents within the extended correction period, the application cannot proceed, and the applicant's right to file as a Prior User for the same invention is deemed forfeited. Conversely, if all administrative requirements have been fulfilled, the DGIP will determine the filing date of the application, provide written notification to the applicant or their representative, and proceed to the substantive examination stage.

Second, the substantive examination stage. After an application is declared administratively complete, a team of examiners formed by the DGIP will conduct a substantive examination. This team is formed within 14 (fourteen) days from the application's filing date. The examination team is tasked with assessing whether:

• the invention for which recognition is sought was implemented in Indonesia before the filing date of the patent application by the other party;
• the implementation of the invention was not based on knowledge obtained from the description, drawings, examples, or claims in the other party's patent application; and
• the invention implemented by the applicant is the same as the patented invention.

The team is also authorized to request additional evidence and/or conduct on-site inspections. The examination of evidence is carried out within a maximum of 70 (seventy) days from the formation of the team. During this period, the team is required to notify the patent holder or their representative of the application for recognition as a Prior User. The patent holder or their representative has the right to submit written opinions and/or objections to be considered by the team in the substantive examination.

The decision to approve or reject an application for recognition as a Prior User is made within a maximum period of 180 (one hundred and eighty) days from the application's filing date. The decision is issued by the Minister of Law through the DGIP, communicated in writing to the applicant or their representative, and recorded in the register of Prior User. If the application is approved, the acknowledgement letter of Prior User is issued within a maximum of 14 (fourteen) days from the delivery date of the decision. On the other hand, if the application is rejected, a notification of rejection, along with the reasons, is delivered within the same timeframe.

MoL Regulation 1/2025 explicitly regulates that an acknowledgment letter of the Prior User cannot be used as a basis for the deletion of a patent. This provision is not regulated in the Patent Law, but is introduced through MoL Regulation 1/2025. This reflects that the recognition granted by the government through the acknowledgment letter for Prior User is not intended to nullify or challenge the validity of a patent that has been lawfully granted to another party. This regulation is crucial for maintaining legal certainty in the patent system, considering that patent deletion or invalidation has its own distinct mechanism as specifically regulated in the Patent Law.