Indonesia’s legal system recognizes the concept of a prior user, which forms an integral part of intellectual property rights, particularly patents. The concept of prior user serves as a form of justice for parties who have used an invention before another party submits a patent application. This principle plays a vital role in maintaining fair competition and encouraging innovation, especially for MSMEs and industries lacking the resources to file patents promptly. The concept is regulated by national legislation and its implementing regulation—namely, Law No. 13 of 2016 on Patents as amended by Law No. 65 of 2024 and the Minister of Law Regulation No. 1 of 2025 on Prior Users.
Understanding the Concept of Prior User
Article 1 (1) of Law No. 13 of 2016 on Patents, as amended by Law No. 65 of 2024 (“Patent Law”), defines a patent as:
“A patent is an exclusive right granted by the state to an inventor for their invention in the field of technology for a specific period to personally exploit the invention or to grant permission to others to exploit it.”
Based on the above provision, patents are granted only if the invention meets specific requirements—namely novelty, inventive step, and industrial applicability—as outlined in Article 3(1) of the Patent Law. Through the patent, the inventor obtains exclusive rights to use, sell, lease, or license the invention within a defined timeframe.
In addition to granting exclusive rights to inventors, the law also embraces fairness by recognizing the rights of parties who used the invention prior to a patent application, as stipulated in Minister of Law Regulation No. 1 of 2025 on Prior Users (“Ministerial Regulation 1/2025”).
According to Article 14 (1) of the Patent Law and Article 1 (3) of Ministerial Regulation 1/2025, a prior user is a party who has already utilized the invention before it was submitted for patent registration. Therefore, although the patent is granted to the applicant, the prior user still has the right to continue using the invention without seeking permission from the patent holder. However, the prior user may not transfer this right to others—except by inheritance—and cannot prevent others from using the invention. These limitations are intended to protect those who have invested in the development and application of the technology prior to any patent claim.
Nonetheless, it is important to note that a prior user is not the holder of patent rights, and protection is only granted to prior users acting in good faith who did not file for a patent. To gain recognition as a prior user, one must submit a request to the Minister of Law, either personally or through a legal representative, and fulfill the specified requirements.
Steps to Apply as a Prior User
Before submitting an application for prior user recognition, it is essential to understand that such an application may only cover one invention. If the prior user has used multiple inventions, each one must be applied for separately.
Ministerial Regulation 1/2025 outlines the following application process:
- Submission Stage
The prior user (applicant) submits an application in Indonesian to the Ministry of Law either electronically via the official website of the Directorate General or in writing by non-electronic means. The application must include a form containing, at minimum:
a. Full name, address, and nationality of the applicant
b. Full name and address of the attorney (if submitted through a representative)
c. Title of the invention
d. Patent number and claim number of the invention that corresponds to the requested prior user certificate
The application must also include the following supporting documents:
a. Proof of payment of the application fee
b. Power of attorney (if applicable)
c. Description of the invention
d. Illustrations or diagrams of the invention
e. Explanation of activities carried out related to the invention
f. Evidence that the invention was used in Indonesia before the filing date of the referenced patent
g. A declaration confirming the invention was not derived from the patent’s specification
h. Proof that the invention is identical to that protected by the patent
- Payment Stage
Applicants must pay the required fee as specified in regulations concerning non-tax state revenue applicable at the time of submission. - Examination Stage
This stage consists of two phases:
a. Administrative Review:
Conducted within 14 days of submission. If the application is incomplete, the Minister of Law, via the Directorate General of Intellectual Property (DGIP), will notify the applicant in writing. The applicant has 30 days to complete the requirements. Failure to do so will be deemed a withdrawal of the application.
b. Substantive Review:
DGIP forms a team to carry out the substantive review within 14 days of receipt of the application. The team comprises patent examiners and legal analysts, numbering between five and nine members (odd-numbered), and may include academics, practitioners, and representatives from relevant institutions. The team is ad hoc and assigned per application.
- Decision Stage
After review, the Ministry of Law, through DGIP, issues a written decision either approving or rejecting the application within 180 days from the date of receipt. The decision is provided to the applicant (or attorney) and recorded in the Prior User Register.
According to Article 18(1) of Ministerial Regulation 1/2025, once approved, the applicant will receive a certificate of prior user status. Article 18(2) sets the following criteria for recognition:
a. The invention must have been used in Indonesia before the filing date of the corresponding patent.
b. The invention must:
- Not be derived from the description, illustration, example, or claims of the patented invention; and
- Be the same as the patented invention.
Even after receiving the certificate, the prior user is prohibited from transferring the right to others, except by inheritance. Any violation may result in revocation of the certificate by the Ministry, as stipulated in Article 20 of Ministerial Regulation 1/2025.
Success Strategies for Using Patented Inventions as a Prior User
To maximize the benefits of using an invention and ensure legal protection, prior users are encouraged to adopt the following strategies:
a. Preventive Strategy
To prevent future disputes and strengthen a prior user claim, it is essential to maintain thorough documentation of the invention’s use before the relevant patent was filed. This includes technical drawings, product specifications, R&D reports, and meeting minutes evidencing internal development. These documents serve as key proof of prior use. Furthermore, prior users should consider hiring intellectual property consultants to assess the risk of conflict with existing patent holders.
b. Responsive Strategy
In case of dispute with a patent holder, the prior user may defend their rights by presenting evidence of early usage. Expert witnesses—such as academics or researchers in the relevant field—can help confirm the technical use of the invention before the patent was filed by another party.
By implementing these strategies, prior users can not only safeguard their usage rights but also leverage the invention as a legal and strategic business asset. Ultimately, success as a prior user depends not just on early use, but on the strength of documentation, legal awareness, and strategic foresight in addressing future risks.***
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