Alert: A Potential Risk in Indonesian Patent Protection Thread poster: Mohamad Ikhsan
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I write to shed light on a pressing matter that demands our attention—the usage of language in patent applications, specifically in the claims section.
It has recently come to my awareness that a concerning trend is emerging at the Directorate General of Intellectual Property (DJKI) in Indonesia. Patent examiners there often recommend or even insist on the utilization of the word "dimana" as a translation for the term "wherein" and other similar expressions. However, I must emphas... See more I write to shed light on a pressing matter that demands our attention—the usage of language in patent applications, specifically in the claims section.
It has recently come to my awareness that a concerning trend is emerging at the Directorate General of Intellectual Property (DJKI) in Indonesia. Patent examiners there often recommend or even insist on the utilization of the word "dimana" as a translation for the term "wherein" and other similar expressions. However, I must emphasize that this practice deviates from the established language rules and guidelines in Indonesia, potentially resulting in infringement.
I have taken the initiative to address this matter by sending a letter to the DJKI requesting them to cease this practice. Unfortunately, my letter did not receive a response. In addition, I also reached out to Badan Pengembangan dan Pembinaan Bahasa, which is the authorized language regulatory body in Indonesia as regulated in Undang-Undang Nomor 24 Tahun 2009. They responded by informing me that they have sent a letter to the DJKI to enhance the competence of their patent examiners. However, there is no further confirmation regarding the response from DJKI to such a letter. Nevertheless, I believe it would be beneficial to raise awareness among patent consultants and translators who involve in patent application in Indonesia regarding this misinterpretation by the DJKI.
The evidence supporting this matter is as follows:
1. According to Permenkumham No. 38 Tahun 2018, patent documents must be written in the Indonesian language. The use of the Indonesian language is regulated by Peraturan Presiden Nomor 63 Tahun 2019, particularly in Article 2. Consequently, the Indonesian language used in patent writing must adhere to the rules and guidelines of the Indonesian language. These rules and guidelines are established by Permendikbudristek No. 18 Tahun 2021 concerning the standardization and codification of the Indonesian language. The word "dimana" is not among the standardized and codified words in the Indonesian language, thus rendering its usage inconsistent with the rules of the Indonesian language. I have confirmed this information with Badan Pengembangan dan Pembinaan Bahasa. The confirmation documents may be provided as per request.
Therefore, the use of the word "dimana" potentially violates the law as the Indonesian language used becomes inconsistent with the rules of the Indonesian language, despite the mandatory requirement for patent writing to utilize proper and correct Indonesian language following its rules and guidelines.
2. International regulations from the World Intellectual Property Organization (WIPO) state that it is not mandatory to use the term "wherein" to describe technical features in patent applications. Other suitable words and expressions can be used as well. By applying simple logic, the writing of patents does not necessarily require the use of translated terms such as "dimana." Instead, the words used to describe technical features can be adjusted to the Indonesian language, as governed by the laws of Indonesia.
If someone becomes aware of this issue and creates a similar invention, they can seek legal protection by arguing that the invention they create does not imitate any existing patents. This is because the supposed to be protected invention contains claims that lack clear definitions due to the use of a word that has no definition ("dimana") or twisted definitions (the documents can be provided).
Although the use of "dimana" or "di mana" (you can ask me for clarity) has been ongoing for decades without significant problems, but, if I have recognized that this issue could threaten patent protection, it is possible that others may also become aware and maybe choose to engage in infringement in the future.
Furthermore, this issue should be considered a serious matter because it indirectly reflects a misunderstanding of translation. The use of the word "di mana" or "dimana" may occur because these words are mistakenly considered equivalents of the words "where" or "wherein" in their function as conjunction in English. However, the function and meaning of "where" or "wherein" do not always align with the phrase "di mana" and especially the word "dimana," which do not have a valid legal definition. If the root of the problem lies in the understanding of translation, then the root of the problem also lies in linguistic aspects. To translate a text from one language to another, an understanding of both the source and target languages is necessary, which is the need of sufficient linguistic understanding.
Insufficient linguistic understanding can have fatal consequences for patent protection. Errors in linguistic aspects can render an invention irrelevant. I have come across several patents that have become irrelevant due to linguistic matters. The word "menyerap" means "absorb", but it can also mean "permeate" as long as there is the preposition phrase "ke dalam" ("into") to make it "menyerap ke dalam" ("permeate into"). When we write in the patent description as "spons menyerap air" ("sponge absorbs water"), while in the claims, we write "air menyerap spons" ("water absorbs sponge"), the invention becomes inconsistent between the description and the claims. If we want to continue using the word "menyerap," it should be "air menyerap KE DALAM spons" ("water permeates INTO the sponge"). It's just a matter of the preposition. Another example involves the phrase"in that," which serves as a conjunction. Detailed explanations can be provided, in which it is related to the international rules from WIPO. Remember that the use of the phrase "di mana" or the word "dimana" may occur because these words are mistakenly considered equivalents of the words "where" or "wherein" in their function as conjunction in English, although they are not. The patent applications involved with such errors have been granted. It means it has been through examination by patent examiner. Instances like these have been found solely due to indications of a lack of understanding of linguistic aspects through the use of the word "dimana" by the patent examiners.
In conclusion, I would like to express my sincere gratitude for your expertise in patent consultation and translation. I kindly urge you to extend your cooperation and support by raising awareness among your colleagues and professionals in the field regarding this critical issue. Together, we can strive to ensure the precise and proper use of language in patent applications, aligning with the language regulations in Indonesia.
Your valuable assistance in addressing this matter would be highly appreciated. If you require any additional information or clarification, please do not hesitate to reach out to me.
NB: Please accept my apologies if I have posted this in the wrong subforum. I chose to share it here as it pertains to the linguistic aspect of patent applications. ▲ Collapse
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