Regulation of Patent Protection of Computer Programs as Inventions in Indonesia

The protection of computer programs in Indonesia has been strictly regulated in the Copyright Law, but the patent obtained by Eddy Tuhirman for his program in 2017 shows that the protection of computer programs in Indonesia is not impossible. This study aims to find out how the regulation of patent protection for computer programs in Indonesia. Using normative juridical research methods, with an emphasis on analysis on applicable legal regulations and other legal sources relevant to the legal issues studied. The results of this study indicate that based on the explanation of Article 4 letter d of Law no. 13 of 2016 concerning Patents, patent protection for computer programs can still be granted on a limited basis. Patent protection is not granted to computer programs which contain only a set of instructions expressed in the form of language, code, schematic or in any other form without having a technical effect. Patents can only be granted for computer programs that have characteristics in the form of instructions, technical effects, and problem solving in the field of technology. In order to provide more legal certainty, it is suggested that the government make stricter and clearer regulations, particularly regarding the types and specifications of computer programs that can be granted patents.


A. INTRODUCTION
Technological development is directed at improving the quality of mastery and utilization of technology in order to support the transformation of the national economy towards an economy based on competitive advantage 1 . Existing technological developments must be maximally utilized in all fields in order to provide added value and national competitiveness in the world arena (Explanation of Law Number 13/2016). In order for the support of technological developments to national development to take place consistently and sustainably, it needs to be encouraged by a strong guarantee of legal protection. Such legal protection is needed in order to encourage creators and/or inventors to continue to innovate to create new technologies that are beneficial to the development of society 2 .
As a member of the Paris Convention for the Protection of Industrial Property (Paris Convention), Indonesia provides legal protection for industrial property rights which include patents, models and designs, industrial designs, and trademarks in order to prevent unfair business competition (Paris Convention, Summary, 1883). In addition, based on the Agreement Establishing the World Trade Organization which also includes the Agreement on Trade Related Aspects of Intellectual Property Rights, Indonesia guarantees the protection of intellectual property by ratifying the international agreement through Law No. 7 of 1994. Indonesia has also ratified the Berne Convention for the Protection of Artistic and Literary Works through Presidential Decree No. 18 of 1997 and the World Intellectual Property Organization Copyrights Treaty (WIPO Copyright Treaty), here in after abbreviated as WCT, through Presidential Decree No. 19 of 1997 3 .
Patents, as exclusive rights, are granted by the state to inventors for their inventions in the field of technology for a certain period of time to implement the invention themselves or give approval to other parties to implement it (Article 1 paragraph (1) of Law 13 of 2016). However, although computer programs are understood as one of the intellectual property in the field of E-ISSN : 2776-9674 ISSN : 2776-9259 ILREJ, Vol 3, No.1, Tahun 2023 Regulation of Patent Protection of Computer Programs as Inventions in Indonesia | 124 technology 4 , their protection is expressly regulated in Law Number 28 of 2014 concerning Copyright (Copyright Law) 5 . A computer program in the Copyright Law is defined as a set of instructions expressed in the form of language, code, scheme, or in any form intended to make a computer work to perform certain functions or to achieve certain results. Furthermore, the protection of computer programs is stated more explicitly in Article 40 paragraph (1) letter s as a creation in the field of science protected by copyright 6 .
In the last five years, there have been many studies conducted related to the legal protection of intellectual property of computer programs, among others, research by Abdul Rauf, Annah, and Hardi entitled Legal Protection of Computer Programs in Indonesia. The results of the study focused on the legal protection of computer programs through copyright 7 . In addition, Gabrie Chriesta Agusthie Kansil has also conducted research related to the legal protection of computer programs related to criminal acts of piracy through the perspective of copyright law. Other research conducted by I Gede Ari Krisnanta Permana, Ratna Artha Windari, and Dewa Gede Sudika Mangku also discussed the legal protection of computers through copyright 8 . These studies strengthen the understanding that computer programs in Indonesia are only protected by copyright.
To the best of the author's knowledge, research that focuses on the issue of regulating the Legal Protection of Patent Rights on Computer Programs as Invention has never been conducted. Although there have been similar previous studies, namely those conducted by Faik Rahimi in his thesis entitled Patent Protection of Computer Programs Related to Invention in Indonesia.
In several previous studies, there were several innovations, including mentioning that, in Indonesia, computer programs are protected by intellectual property rights, namely patents in accordance with the words of article 1 paragraph (1) of Law no. 13 of 2016, which states that patents as exclusive rights are granted by the state to inventors for their inventions in the field of technology for a certain period of time to carry out the invention themselves or to give approval to other parties to carry it out. However, among the innovations that exist, there are some differences between the studies that have been carried out. Among them is research conducted by Abdul Rauf, 2021 where the research results are focused on legal protection of computer programs through copyright. Apart from that, Gabrie Chriesta Agusthie Kansil has also conducted research related to the legal protection of computer programs related to the criminal act of piracy through the perspective of copyright law. Another study conducted by I E-ISSN : 2776-9674 ISSN : 2776-9259 ILREJ, Vol 3, No.1, Tahun 2023 Regulation of Patent Protection of Computer Programs as Inventions in Indonesia | 125 Gede Ari Krisnanta Permana, Ratna Artha Windari, and Dewa Gede Sudika Mangku also discussed computer legal protection through copyright.
The research still uses the old legal basis, namely, Law Number 14 of 2001. Meanwhile, this research uses the latest legal basis, namely Law Number 13 of 2016 concerning Patent Rights. This research is conducted to find out how computer programs can be protected by patents in Indonesia based on Law Number 13 of 2016. It is hoped that the results of this research can academically provide new legal knowledge for the world of education and practically support the development of national technology.

B. METHOD
This study employs a normative juridical method, which is one of the approaches that focuses the analysis on the applicable legal regulations relevant to the researched legal issues 910 . The objective of this method in the study is to ascertain how the regulation on patent protection for computer programs in Indonesia is formulated, and subsequently analyze the findings descriptively while considering the shortcomings present in the said regulations.

C. RESULTS AND DISCUSSIONS
Based on the Paris Convention, Patent is recognized as industrial property that must be protected by each member state. The State of Indonesia has regulated legal protection of patent rights since 1989 through Law Number 6 of 1989 and has been amended several times to date with the latest Law, namely Law Number 13 of 2016 concerning Patents (Patent Law) 11 . It is stated that a patent is an exclusive right granted by the state to inventors for the results of their inventions in the field of technology for a certain period of time to carry out the invention itself or give approval to other parties to carry it out (Article 1 paragraph (1) of the Patent Law). With the existence of patent protection, the community will appreciate the invention more 12 . Invention is defined as an inventor's idea that is poured into a specific problem-solving activity in the field of technology in the form of a product or process, or the refinement and development of a product or process 13 .
To be granted Patent protection, the invention must have novelty, contain inventive steps and be applicable in the industry 14  Asri Sarif, Regulation of Patent Protection of Computer Programs as Inventions in Indonesia | 126 constitutive system or first to file system 15 . Patent rights are only obtained if the invention has been registered and has met the administrative requirements through examination by the Directorate General of Intellectual Property Rights 16 . An invention is considered new, if at the Filing Date, it is not the same as previously disclosed technology. The meaning of the word not the same, is not just different, but must have a difference from the function of the technical characteristics of the Invention when compared to the function of the technical characteristics of the Invention that has existed before.
The invention does not include aesthetic creations; schemes; rules and methods for performing activities that involve mental activity, games, business, rules and methods that only contain computer programs, presentations of information. It also does not include inventions in the form of new uses for existing and/or known products and/or new forms of existing compounds that do not result in a significant increase in efficacy and there are differences in the related chemical structures of known compounds.
An Invention is considered to contain an inventive step if the Invention would be unforeseeable to a person skilled in the field of engineering. In addition, an invention must be applicable to industry, meaning that an invention in the form of a product must be capable of being made in a mass-produced manner with the same quality, while if the invention is in the form of a process, the process must be capable of being carried out or used in practice. It should be understood that there are several inventions that are not granted patent protection, namely inventions in the form of processes or products whose announcement and use or implementation are contrary to applicable laws and regulations, religious morality, public order, or decency. Furthermore, inventions in the form of methods of examination, treatment, medication and/or surgery applied to humans and/or animals. Third, theories and methods in the fields of science and mathematics; or (i) all living things, except microorganisms (ii) biological processes essential for producing plants or animals, except non-biological processes or microbiological processes.
Patent protection in Indonesia includes ordinary patents and simple patents. While ordinary patents are granted for inventions that contain novelty and inventive steps, simple patents are granted for inventions that are developments of existing inventions 17 . However, the simple patent must have a function that is more effective than the prior art. Based on Article 22 and Article 23 of the 1945 Patent Law, the term of protection granted to ordinary patents is 20 years from the date of grant, while that of simple patents is 10 years. Different from other intellectual property rights, the term of patent protection cannot be extended 18 . If the term of E-ISSN : 2776-9674 ISSN : 2776-9259 ILREJ, Vol 3, No.1, Tahun 2023 Regulation of Patent Protection of Computer Programs as Inventions in Indonesia | 127 protection of patent rights has expired, the invention will become public property. This is intended so that every invention can be useful for the public interest and technological development.
Copyright Law defines a computer programs as a set of instructions expressed in the form of language, code, scheme, or in any form intended to make the computer work perform certain functions or to achieve certain results. in Article 40 Paragraph (1) letter s expressly states that the computer program as a creation in the field of science granted copyright protection. Based on the nature of the declarative automatic protection of copyright, then any computer program that has been realized in real and announced, then at that time copyright protection applies 19 .
The results of studies conducted by Muhammad Taufik Rusydi 20 showed that the State of Indonesia provides protection to computer programs through Act No. 28 Year 2014 on Copyright with a term of protection for 50 years since the computer program is realized and announced. Holders of rights to computer programs (software) have several exclusive rights including 21 : a. The right to reproduce a computer program (software) in material form. This right includes copying the computer program (software) on a computer hard disk or flash drive, writing or recording the source code of the computer program (software). b. The right to publish a computer program (software), this means making the computer program (software) public in Indonesia. c. Creating an adaptation of the program, this means creating another version of the program, such as creating another language, code or notation of the computer program (software). The debate on how a computer program should be protected as an invention in the field of technology still occurs frequently. The legal protection provided by copyright and patent has a different character. Copyright does not give monopoly rights to the copyright holder of a computer program on how the computer program works, but protection is given to prohibit other parties from copying the expression of instructions on computer programs that can be applied in computer devices 22 . In contrast to the protection of Patent rights that give the inventor the right to monopolize the invention within a certain period of time, namely implementing his own invention or giving permission to other parties to implement it.
Copyright only covers expressions, and not ideas, procedures, methods of operation or mathematical concepts. whereas patents are exclusive rights granted for inventions, which are products or processes that provide a new way of doing something, or offer a new technical solution to a problem (www.wipo.int). Article 4 letter d of Law 13 of 2016 on Patents in Indonesia states that one of the inventions that are not granted patent protection is a rule or E-ISSN : 2776-9674 ISSN : 2776-9259 ILREJ, Vol 3, No.1, Tahun 2023 Regulation of Patent Protection of Computer Programs as Inventions in Indonesia | 128 method that only contains a computer program. This strengthens the notion that computer programs cannot be protected by patents.
However, if we read the explanation of the article, we can see that a computer program that is not granted a patent is a computer program that only contains a program without any character, technical effect, and problem solving. If the computer program has characters (instructions) that have technical effects and functions to produce tangible or intangible solutions to problems, it is patentable.
The explanation of Article 4 letter d of Law 13 of 2016 concerning Patents, it also provides examples of the types of computer programs that can be granted patents, namely: a. An algorithm is effectively a method expressed as a finite sequence of well-defined instructions for computing a function. Starting from an initial state and an initial (possibly empty) input, the instructions describe a computation that, when executed, proceeds through a finite number of well-defined sequences of states, eventually producing "output" and stopping at the final state. The transition from one state to the next is not necessarily deterministic; some algorithms, known as randomization algorithms, use random inputs. Based on the foregoing, it can be understood that computer programs in Indonesia can still get patent protection, it's just that the requirements are more difficult than copyright. b. Encrypting information by encoding and decoding to scramble it so that the information cannot be read by other parties. The title of the invention in a patent application, according to Article 5 of the Minister of Law and Human Rights Regulation No. 38/2018 on Patent Applications, is not a title that contains promotional words or trademarks. The title of the invention must describe the invention broadly and represent the topic of the invention or the core of the invention with reference to the technical field of the invention as the subject matter of the invention. Here is an example of a computer program that has been granted patent protection: The dynamic rebalancing method is a method for combining investment strategies automatically performed by a host computer, comprising asset rebalancing asset trading, and reinvesting (Automatic Asset Rebalancing, Automatic Trading Plan, and Automatic Re-rentry). In addition, the present invention also creates a mechanism for automation by the host computer of the three investment strategies, comprising: automatic asset rebalancing, automatic asset trading, and automatically determining the momentum to reinvest. The host computer will monitor and maintain the movement of the investment fund portfolio in real time so that it is always Asri Sarif, Regulation of Patent Protection of Computer Programs as Inventions in Indonesia | 129 within the desired portfolio boundaries consistently and systematically. This invention is used as an early warning for investors in maintaining the balance of their portfolios and also provides convenience for investors to make the desired investment transactions automatically and consistently to maintain the balance of the customer's portfolio in accordance with the chosen risk.
Based on the example of a computer program that has been granted Patent Protection Number: IDP000047740, it can be seen that the title of the requested computer program describes the character and technical effects as well as the purpose of solving the problem. In drafting the patent abstract, the applicant must also be able to explain the technical effects of the computer program. From the analysis above, computer programs in Indonesia are entitled to patent protection, by fulfilling the conditions listed in the table above. Computer programs which are creations that must be protected. As a result of technological development and the intellectual abilities of its creators, computer programs often function to make it easier for humans to carry out certain activities.

D. CONCLUSION
Based on the results of this study, it can be concluded that patent protection for computer programs in Indonesia has not been expressly regulated in Law 13 of 2016 concerning Patents. However, based on the explanation of Article 4 letter d of Law No. 13 of 2016 on Patents, it can be understood that Patent Protection on computer programs can be granted on a limited basis for computer programs that have characteristics in the form of instructions, technical effects, and problem solving in the field of technology. It is suggested that the government can make firmer and clearer regulations, especially regarding the types and specifications of computer programs that can be granted patents.