Ulhaq Hayyan Paper 2 - 2 PDF

MANAGING UNCERTAINTY AND
COMPLEXITY IN THE UTILIZATION OF

BIODIVERSITY THROUGH THE
TAILOR-MADE INVENTOR DOCTRINE
AND CONTRACT LAW
Hayyan ul Haq
Centre for Intellectual Property Law
Molengraaff Institute for Private Law
Law School Utrecht University
Presented at International Workshop

Managing Uncertainty and Complexity in Biodiversity and Climate Change,
University Chatolic Louvain La-Neuve, Belgium
15-16 June 2006
MANAGING UNCERTAINTY AND COMPLEXITY IN THE
UTILIZATION OF BIODIVERSITY THROUGH THE TAILOR
MADE INVENTOR DOCTRINE AND CONTRACT LAW
Hayyan ul Haq
Centre for Intellectual Property Law (CIER),
Molengraaff Institute for Private Law, Utrecht University
ABSTRACT.......................................................................................................................................... 3
1. INTRODUCTION........................................................................................................................... 4
2. UNCERTAINTY AND COMPLEXITY: MAPPING PROBLEMS............................................ 5
3. The Implication of the Inventor Doctrine and Freedom of Contract in Biodiversity......... 10
4. RE-EXAMINING THE CONSTITUTIVE ELEMENTS OF THE EXCLUSIVE RIGHTS
AND FREEDOM OF CONTRACT .......................................................................................... 14
''''''''''''''''''''' (
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5. THE TAILOR-MADE PATENT (INVENTOR DOCTRINE) AND FREEDOM OF
CONTRACT ................................................................................................................................ 20
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6. INTEGRATED LEGAL FRAMEWORK FOR THE SUSTAINABLE COLLECTIVE LIFE . 30
7. CONCLUDING REMARKS........................................................................................................ 33
Bibliography...................................................................................................................................... 34
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MANAGING UNCERTAINTY AND COMPLEXITY IN THE

UTILIZATION OF BIODIVERSITY THROUGH THE TAILOR MADE
INVENTOR DOCTRINE AND CONTRACT LAW
Hayyan ul Haq
Centre for Intellectual Property Law (CIER),
Molengraaff Institute for Private Law, Utrecht University
ABSTRACT
This paper aims to explore the ideals of tailor-made inventor doctrine (patent regime)
and contract law that may be devoted to managing the uncertainty and complexity in the
field of biological diversity and climate change. To visualise the complex problem in
managing biodiversity, this paper identified and classified three main problems: (i) symptoms;
(ii) core problem; and (iii) root cause. This work also shows the problems and challenges in
Indonesia in nurturing sustainability through several legal figures (rechtsfiguur), such as
rights, property, intellectual property, inventor doctrine and contract, tort
(onrechtmatigedaad). At the end, this paper offers an Indonesian perspective in constructing
the ideal contract law and inventor doctrine to facilitate inventors to appropriately optimise
their intellectual products as well as to maintain sustainability of collective life. This paper
elaborates unity and sustainability as meta-values that are derived from systems framework,
and then combine them to the Pancasila as the grand norm of the Indonesian positive laws in
constructing the constitutive elements of the ideals of contract and inventor doctrine. The
universal values (unity, sustainability and the Pancasila values) can be designed to entrench
and control the balanced appreciation and implementation between exclusive right, freedom of
contract, social function, and public interest towards a strong and ideal legal framework for
the sustainability of collective life. ***
Keywords: Inventor Doctrine, freedom of contract, Biodiversity, Pancasila,

Sustainability
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1. INTRODUCTION
One of the most serious threats in our collective life is the emergence of the uncertainty and
complexity in biodiversity and climate change. This threat is indicated by the scarcity and crisis in
public goods, such as water, air, sustainable environment, information, science, knowledge,
technology, and other sources that can be used by people to maintain their sustainable collective
life. The scarcity in those public goods has been indicated and visualised by disparities,
difficulties1 and conflicts of interest in optimising (access and distribution) natural resources,
information, knowledge and technology.2 This condition indicates the emergence of the tragedy
of the commons3 and the tragedy of anti-commons4 that may threaten the sustainability of human
life.
Most of the above problems are sparked by the failure of our community in bridging the
individual (groups) interest and public interest. So far, the existence and exploitation of
individual interest is supported by two main doctrines: (i) inventor doctrine (exclusive right in
patent law), and (ii) freedom of contract doctrine. The two doctrines had been institutionalised
into various operational regulation that driving human behaviour, either at global, national or
regional level. Seemingly, these issues (boundaries between public interest and individual
interest) are likely to be unfinished on the world agenda if we fail to invent the ideal state of
social order.
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Indeed, the existence of those problems does not standing alone. They are interdependent
with other related complex problems in the field of sociology, economics, politics, and culture. In
the context of the exploitation of exclusive rights, including intellectual products in patent law,
the weakest link may refer to the exploitation of exclusive rights in a patent regime (hereinafter,
inventor doctrine)5. Whereas in the context of optimization of freedom of contract, the weakest
link can be found in the absolute free will doctrine. The exclusive right in patent excludes others
to use or share any information, knowledge and technology that have been claimed inventor or
patent holder. While, the freedom of contract allow every one to do or access, or exploit any thing
by refering certain legal formalistic requirements (Positivism).
Admittedly, the doctrines of inventor and the freedom of contract are principally aimed at
protecting the interest of the individual (inventor) who actualizes his existence and potential. For
example, to a certain extent, the exclusive right given to inventors may stimulate the production
and dissemination of creativity and productivity (science, knowledge and technology works)
under free market conditions, as well as promoting certain technology policies. Likewise, the
doctrine of freedom of contract reflects the existence and respectfulness to the individual
dignity.6 This doctrine provides opportunity for everyone to actualise or manifest his or her
will or interest in order to protect the individual freedom and dignity. Unfortunately, in
practice, the ideal goal and rationales have been manipulated by a few gigantic
corporations. They use and exploit the exclusive rights and freedom of contract as the main
instruments to accumulate the interest of power holders towards capitalism. At a time when
millions of people are deprived of basic rights to health, food and education, and inequality is
growing, this question challenges the role of law –patent law- in bridging the gap. One effort that
can be used to brigde the gap is a reinterpretation of the exclusive right principle in inventor
doctrine and free will in contract.
For that reason, it is relevant to explore an ideal alternative approach in bridging the gap
between individual and public interest. In this case, how to transform the exclusive rights and
freedom of contract to maintain and guarantee the sustainable collective life. The idea is that this
work will re-examine and elaborate the existence and the implication of exclusive rights and the
freedom of contract in developing countries, particularly in Indonesia. In re-examining and
elaborating the existence and implication of the exclusive rights principle, I will observe
Indonesian biodoversity case (implication and management) and introduce an Indonesian
perspective and employ an ideological and paradigmatic view from Pancasila as the grand norm
in Indonesia.
2. UNCERTAINTY AND COMPLEXITY: MAPPING PROBLEMS

The implementation of an absolute exclusive right principle in the inventor doctrine and the
freedom of contract by a few gigantic corporations had raised some complex problems. The main
issue in these problems is clustered around tension between the clash between public right and
individual right. In order to map the anatomy of these problems, this work classifies them into
three layers: (i) symptoms; (ii) core problem; and (iii) root causes.
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Firstly, symptoms are considered as undesired effects, which appear at the surface. In this
context, they can be seen as impacts that have emerged from the implementation of the patent
regime (inventor doctrine) that embodies the exclusive rights principle and freedom of contract
without an ideal legal framework. Some problems such as, the incapability of people in many
developing countries to access essential resources, such as food, medicine, and basic education for
sustaining their collective life, inequality in distributing the benefits of intellectual products,
accumulations of growth yields to a few gigantic corporations, misappropriation, over-
exploitation, extinguished biodiversities, climate change, and so forth are examples of this
symptom. It can be seen as the threats of the common and anti-common tragedy.7 Various facts
and data visualises the serious threats of an unbalanced policy in managing and regulating
information, knowledge, technology and natural resources that bring about the disparities in
optimising intellectual products and biodiversities. Data on this disparity indicate that most
intellectual property products and their derivatives and other global resources are controlled by a
few gigantic corporations in developed countries8. Some data show several resource piracies9 and
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cases of misappropriations in the exploitation of intellectual products10 and over-exploitation of

natural resources.11
Secondly, the core problem refers to the substance12 and structure of law13, particularly in a
patent and contract law. At the substantial level, the crux of the tension lies in the different
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characteristics of the existing norms between developed and developing countries.14 Anup Shah,
in ‘the WTO and Free Trade’, notes a number of problems concerning TRIPs related to the
weaknesses of its internal regulation15 to protect the public interest in the field of health –drugs
and medicines, food, and distribution information and technology. The most fundamental issue,
TRIPs has transformed the Northern patent regime into global regime, where biotechnological
invention are concerned.16 In this case, we can see the two legal legal foundations (landmarks) in
US concerning biotechnology: (i) The Supreme Court’s decision in Diamond v Chakrabarty in
1980 and (ii) Congress’s enactment of the Bayh Dole Act in the same year. In Chakrabarty, the
Supreme Court held that a genetically enginereed bacterium was patentable under Art. 101 of the
Patent Act. This decision expanded patentable subject matter to include “anything under the sun
hat is made by man” regardless of its status as living or nonliving matter, and effectively open the
door for patenting discoveries in the field of biotechnology. Certainly, this doctrine sparked the
tention in implementing the patent regime, particularly between developed and developing
countries. This is caused by different level in mastering information, knowledge and technology
and different values17 in validating the patented subject matters.
Then, at the structural level, these problems have been rooted in the strong influence of the
freedom of contract and the insertion of “hard law”18 as the core characteristic of the TRIPS
Agreement19 and its implementation, which tends to serve and protect the interest of capitalism20
in developed countries. This can be seen in technological knowledge, which is clustered in
developed countries. Mostly, it lies in the hands of multinational companies (MNCs), which
dominate research and development (R&D)21 and natural resource exploitation22 activities
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worldwide. The impact of an unequal information, knowledge and technology distribution

including the failure of technology transfer from developed to developing countries is largely felt
in developing countries, particularly in the field of public health and sanitation, food,
malnutrition, and education.23 Moreover, bureaucratic capitalist (collaboration between
institutions in legal structure with corporations) had used the doctrine of freedom of contract to
exploit natural resources.24 This is because the Indonesian contract law system is not supported
by other comprehensive complementary legislation and implementative regulatories.25 This
condition had arising various loopholes, which are used by many parties (corporation parties) to
manipulate the contract law to exploit the natural resources. The freedom of contract had been
used by many parties as the core instrument to exploit the Indonesian natural resource (public
right/interest) in maximum degree. This manipulation had causing habitat loss, degradation, and
fragmentation26, over-exploitation27, and secondary extinction.28
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Thirdly, the root cause of the symptoms can be found in the philosophical and conceptual
domain,29 which validates the exclusive right principle and the freedom of contract, particularly
in the recent market contexts. The concept of an exclusive right in the doctrine of inventor –the
patent regime- and the freedom of contract is central to every effort to safeguard the products of
the mind30 and free will or interest. Even though the exclusive right principle and contract play a
significant role in accelerating industry and trade development towards economic progress,31 it
also contains potential threats that may widen the gap between developed and developing
countries in optimising information, knowledge, and technology and natural resource (biological
diversity). In order to avoid these threats, it is necessary to link the inventor doctrine and freedom
of contract with human rights, public interest, the social function, unity and sustainability.32
Therefore, it is relevant to re-examine the concept of the implementation and impact of exclusivity
in patent and contract law. This is important to provide more equal and just access for
Indonesians and others to information, knowledge, technology and biodiversities, as well as to
maintain sustainable collective life.
3. The Implication of the Inventor Doctrine and Freedom of Contract in Biodiversity
The strong pressure to harmonize the implementation of the inventor doctrine, which
embed exclusive rights, through stricter rules, around of the world raises more complex
questions, particularly in developing countries including Indonesia. This complexity is caused by
the fact that each country has unique, specific and domestical problems, inter alia relating to
socio-cultural, religious, geographical, demographical, political, legal and economic aspects.33 The
forced uniformity for the purposes of harmonisation, accumulated with the strong influence of
the freedom of contract, had brought about several implications on the Indonesian legal system,
covering substance, structure, and culture, either internally or externally in pattern of horizontal
and vertical. The implication can be seen: (i) at the dogmatic or legislation layer; and (ii) at the
practical layer, particularly concerning political, social, and economic –information and
technological-implications.
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At the dogmatical layer, the implication is reflected by the incoherency of the Indonesian
legislation, in the field of patent and contract. The implication of the exclusive principle can be
seen from the Indonesian development of patent legislation. For example, to comply with
TRIPS, Indonesia has revised its patent laws on several occasions.34 Apparently, those revisions
are intended to fulfil the interests of developed countries that have been embodied in the
minimum standard norms of the TRIPS.35 These laws were ratified without a prior study of
their impacts and without proper public consultation. The objective was only to comply with
WTO rules and to avoid pressures and threats from Indonesia’s trading partners. The patent
law was enacted without considering the long-term impacts. Indonesian patent law is projected
s having adverse impacts on biodiversity and traditional knowledge as well as community
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innovation.36 The revision process had sidelined differences of opinion and conflicts of interest
between various sectors of the community, while both the government and the members of the
House of Representatives did not try to bridge those differences.37 The ratification process did
not involve those communities, which might suffer from the implementation of the patent law,
namely farmers, traditional healers and traditional handcrafters,38 indigenous people. Most
substantial parts of the patent law, which influence the sustainability of people, have been
transplanted from Model Laws without considering the main characteristics and the needs of
Indonesians.
While the implication of the freedom of contract can be seen in the Indonesian national
contract law systems, which are clustered into the Indonesian Private Law (Indonesian Burgerlijk
Wetboek). The freedom of contract in Indonesia had been allowing unlimited opportunity for
everyone to actualise and exploit their will or interest, as long as they fulfil the minimum
requirements of the validity of the contract under Indonesian private law.39 Unfortunately, this
norm is not completed by implementory regulations that provide legal certainty in protecting
the public interest or social function. Most of significant terms such as fairness, good faith
(Indonesian Civil Code, Art. 1338 (3) that can be used to protect the public interest and social
function are interpreted by judges. These “catch all” articles are frequently used to protect the
destructor or criminal actor in environmental law cases.40
Then, at the practical layer, since the beginning of the 1980s, the Indonesian government
has embarked upon intensive and extensive Indonesian legal reform, particularly in the field of
intellectual property laws. In this sense, the government has introduced stricter patent rules to
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create a conducive atmosphere for improving the creativity and productivity of people41 and to
attract foreign direct investment in Indonesia.42 Unfortunately, there is no hard evidence for this
policy. Correa and Maskus have found that there is no significant correlation between stricter
rules of intellectual property (patent) and increased investment.43 Even this policy has been
raising a more complex and dilemma problem in its implementation when faced with the
demands of most people to have more equitable access in optimising information, science, and
technology for sustaining their lives.44
As a result, Indonesian patent law became more difficult to enforce. Ignorance of patent
law is widespread within the country and the protection of patent is both practically and legally
weak. Some research has shown that the implementation of the absolute exclusivity principle of
patent law in Indonesia may have a detrimental effect on Indonesia’s technological and
economic development, as the law increases the local cost of important technological products
and further inhibits local technological development45. Before the patent campaign in Indonesia,
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many innovations which are within the public domain, such as woven tie cloth, herbal
medicine, tempe making, kinds of biodiversities, and other traditional medicines were shared by
the public. Now, the patent laws stimulate and force people to privatise public innovations in
private property.46 While the implication of the spirit of freedom of contract in the field of
biodiversity can be seen from various over-exploitation cases that damaging a huge forest and
then extinguishing biodiversities.47
4. RE-EXAMINING THE CONSTITUTIVE ELEMENTS OF THE EXCLUSIVE RIGHTS AND

FREEDOM OF CONTRACT
It is recognised that to a certain extend, a combination of property rights -intellectual
property- freedom of contract, the rule of law, and sound science and technology provides the
basis upon which sustainable development can take place. However, several preliminary
studies48 show that the exploitation of the exclusive right, which is combined with the freedom
of contract bring about injustice in the distribution of access to and the optimalization of global
resources. It is caused by the accumulation of power holders’ interests concerning property, as
a consequence of an inequitable legal framework. The result, in these circumstances is that the
exclusive right and spirit of freedom of contract may surpass collective rights, such as public
interest and social function. Some authors have signified that the exclusive right and freedom
of contract may contain a dangerous inner logic49, which illustrates the tension between basic
reasons that validate the existence of exclusive rights and the impact of rights exploitation. This
is caused by the weakness of the legal system in providing ideal protection and maintaining a
balanced relationship between the individual and collective interest. Consequently, the spirit of
capitalism allows and even strengthens individual or group aggressiveness to surpass the social
interest. Not surprisingly, the disparity in accessing information, knowledge, and technology
becomes more widespread, where power-holder groups control the distribution of information,
knowledge, and technology to the rest. The above description demonstrates the structural
difficulties in appropriately utilizing patent law and natural resource to fulfil and protect
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peoples'interests in optimising information, knowledge and technology50 and biodiversities

towards united sustainable development.
Through incentive theory, the exclusive right is empowered and entrenched by a few
gigantic corporations. It was these corporations, which much more enjoyed and employed the
exclusive right to strengthen the accumulation of profits towards intellectual capitalism.51 This
inconsistency was caused by what Drahos called the “danger of the inner logic” of the exclusive
right.52 The lack of an ideal legal framework to guarantee the just optimization of exclusive
rights results in the power holder, i.e. capitalism, exploiting the exclusive right to the
maximum.53 Clearly, the shift in the meaning and the ultimate goal of the doctrines is caused by
manipulation and forces of self-interest, or corporate interest (capitalism). Undoubtedly,
intellectual property (patent) rights are rights, which are created for and exist within market
contexts.54 Now, under the patent regime and freedom of contract doctrine, the spirit of the
maximalization of exclusive rights and free will brings about disparity and the inappropriate
optimisation of information, knowledge, technology, biodiversities. For that reason, the
exclusive rights principle in patent law and freedom of contract should be re-examined so as to
create an ideal and proportional legal framework for the greatest benefit of mankind in the
frame of unity and sustainability.
In addition, other fundamental conception in relation with the exclusive right in patent
and the freedom of contract such as right, property, information, knowledge, and technology
are still in publc debate, whether they are in public goods or not. Some writers maintain that the
property rights granted by patent law artificially create a kind of scarcity for qualified
intellectual products in order to improve incentives for creating these kinds of socially desirable
public goods.55 Others believe that one common characteristic of certain kinds of public goods is
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that use by one person does not diminish the supply available to others once the good is
produced.56
Apparently, the later description can be traced back under frame of Rawlsian concept on
primary social goods.57 This sense of primary is taken by Drahos to illustrate the essence of
public goods. Principally, the production of some public goods is dependent upon the prior
existence of other public goods. He took constitutions as an example of public goods that are
constituted by norms. In this case, constitutions enable the authoritative production of legal
norms and they help bring legitimacy and stability to government.58 For that reason, creating
property rights in information arguably might do the same thing, that is, improve incentives for
producing and distributing information, knowledge and technology, a socially desirable
category of public goods.59 Unfortunately, under patent regime and contract doctrine, only
stronger parties, usually a few gigantic corporate can control the flow of information,
knowledge, technology, biodiversities, and natural resources toward intellectual capitalism.60
4.1. Biodiversity under Patent Regime - Inventor Doctrine-: Indonesian Case

Indonesia is an archipelagic nation of some 17,000 islands containing great forests61 and
mountainous areas as well as extensive coastal and marine areas62. With its diverse natural
habitats, rich plant and animal resources and large numbers of isolated islands, a large
percentage of Indonesia' s species are endemics. Although Indonesia covers only 1.3 percent of
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the earth’s land surface63, it has rich natural resource (oil, iron, gold, tin, nickel) and
biodiversities (terrestrial and marine)64.
In economic terms, Indonesia’s biodiversity is extremely valuable.65 Bappenas, the
National Development Planning Agency has recognised that Indonesia’s biodiversity is "the
country’s greatest natural resource".66 More than 6000 species of plants and animals are utilised
on a daily basis by Indonesian citizens either harvested from the wild or cultivated. Seven
thousand species of marine and freshwater fish are the major sources of protein for the
Indonesian people. Agriculture and fisheries are the mainstay of the nation’s subsistence
economy. Numerous wild plants and animals are harvested for domestic or commercial
consumption as food, handicrafts, medicines, fuel and building materials.
The above description shows the importance of Indonesian biodiversity to support the
survivality of people not only in Indonesia but also in maintaing the balance and sustainability
of our globe. In order to save our globe, we need a global appropriate norm that creating and
strengthening the unity and sustainability of collective life. Unfortunately, one of the most
serious threats to the sustainability is deriving from the incoherency of the legal system,
particularly at the level of legal substance (norms). In this case, the legal substance refers to the
Indonesian patent law and contract law system.
The concept of patent in Indonesia places exclusive right as the core of patent.67 It offers
a monopoly to developer of useful product and process. In recent developments, due to its
scope, to a certain extend, patent products are becoming the most strategic commodities in
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international trade. They play significant role and function to fulfil the need of society. This is
because nearly all human’s needs in the modern age derived from products of human
intellectual capabilities in the field of information, knowledge and technology, which is
protected by patent law. However, the patent law embeds a various controversial issues,
such as: (i) patent (biotechnology) and biopiracy; (ii) patent and access to genetic resources;
(iii) patent and sharing benefit; (iv) patent and traditional knowledge; (v) patent and licence;
(vi) patent and technology transfer; (v) patent and environment and biodiveristy; (vi) patent
and sustainable development; (vii) patent and open source (public goods), and so forth.
All the above controversial issues are caused by the ambivalency of the patent law and
biodiverisity protection. The problem emanates from criteria for patentability of patent
invention and the nature of biodiversities, prosedur to patenting the invention and biodiversity
(utilisation and protection) and so forth. This differences only provide opportunity for parties
(corporations) to exploit the biodiversities. Consequently, this ambivalency open opportunity
for a few gigantic corporations to control and exploit the intellectual products and natural
resources. Shiva further analysed that patent regime, in the context of ' free trade'and ' trade
liberalisation', as instruments of piracy at three levels: (i) resource piracy68; (ii) intellectual and
cultural piracy69; (iii) economic piracy70. Another example, Japanese corporations have patented
several Indonesian traditional formulas, genetic resources and biological diversities71 without
sharing benefit.72 While, the implication of the freedom of contract can be seen from the tragedy
of the commons in Indonesia73. In addition, the efforts to ‘harmonise’ the patent regime as
68 Resource piracy in which the biological and natural resources of communities and the country are freely
taken, without recognition or permission, and are used to build up global economies. For example, the transfer
of basmati varieties of rice from India to build up the rice economy of the US; the free flow of neem seeds from
the farms, fields and commons to corporations like W. R. Grace for export. See: Vandana Shiva, “Intellectual
Property Rights”, In http://www.psrast.org/vashipr.htm
69 Intellectual and cultural piracy in which the cultural and intellectual heritage of communities and the
country is freely taken without recognition or permission and is used for claiming IPRs such as patents, and
trademarks even though the primary innovation and creativity has not taken place through corporate
investment. For instance, the use by US corporations of the trade name ' basmati'for their aromatic rice, or
Pepsi's use of the trade name ' Bikaneri Bhujia'. Ibid
70 Economic piracy in which the domestic and international markets are usurped through the use of trade
names and IPRs, thereby destroying local economies and national economies where the original innovation
took place and hence wiping out the livelihoods and economic surivival of millions. For example, US rice
traders usurping European markets; Grace usurping the US market from small scale Indian producers of neem
based biopesticides. Ibid
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instrument to exploit the biodiversity and traditional knowledge are likely to met serious
obstacles in its implementation, in the light of Indonesia is one of legal pluralism countries.74
4.2. Biodiversity under Freedom of Contract

Under the doctrine of freedom of contract, Indonesian biodiversities are in fracture
condition, due to the spirit to maximise the free will or interest. This freedom of contract will
accelerate the process of the tragedy of the commons. Based on the Indonesian Civil Code
(Burgerlijk Wetboek) art.1320, validity of contract should be based on: (i) the free will of parties;
(ii) legal capacity to conclude a contract; (iii) definitive object or matter); (iv) legally valid cause.
Other requirement of the validity of contract is regulated under Art. 1321: A contract should not
contradict to (i) coercion; (ii) fraudulent; (iii) negligence. The validity of contract in Indonesia is
only based on legal formalistic requirements. As long as the contracting parties can fulfil the
requirements, they can do anything based on the agreed stipulated clausules in a contract. This
rule is strengthened by Article 1338 of the Indonesian Civil Code, which categorise the contract
as lex specialist.75 This article provides powerfull rights and actions to the contracting parties in
excuting the contract. This contract regime failed to control and to anticipate or to manage the
risk of the contract, particularly after (post-contract) or longitudinal (long term) contracts.
Additionally, the concept of tort (onrechtmatigedaad) under Indonesian Civil Code (Art.
1365) is still in effective. Unfortunately, most of responsibility system under the article (Art.
1365) is interpreted and appreciated under frame the corrective justice principle. This principle
tends to take corrective action after tort action (post pactum). Ideally, the preventive and
represive actions should be taken from the process of negotiation (pre contract), signing
contract, and after sigining contract (post contract). In this point, it is necessary to consider the
responsibility by risk principle, and the just price doctrine, which emphasise the importance of
reason and equity.76
Indeed, if we examine the legal construction, which validating the contract in Indonesia,
we can see an opportunity to make a change by interpreting the important clausules of fairness
and goodfaith principle.77 Unfortunately, the terms of fairness and goodfaith tend to be abstract
terms. Even, they can be interpreted as open norm. So the challenge is how to visualise and
concretisise the true meaning of the fairness and the good faith principle. In my opinion, to
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visualize those terms, it is necessary to combine and tailor them with meta-values, i.e. unity and
sustainability.
5. THE TAILOR-MADE PATENT (INVENTOR DOCTRINE) AND FREEDOM OF

CONTRACT
To elaborate the ideal tailor–made inventor doctrine and freedom of contract, it is
necessary to find out and determine the ideal state of social order. In this section, I try to
elaborate the ideal state of social order from the systems principle and combine them to the
Pancasila framework (Indonesian paradigmatic view in Indonesian case).
5.1. The Ideals Order: Constructing a Framework for Unity and Sustainabilty
In order to explore and to find an ideal alternative for a legal framework in optimising
information, technology and natural resources (ITNR) under the patent regime and contract
law, this work may resort to a number of theoretical frameworks.78 This is important to lay
down the ground rules for people to live together in harmony. This work elaborates the
systems’ thinking, which links and matches the system of values in Indonesia. This view sees
unity as the main mandatatory element of the systems, i.e. a social system to maintain
sustainability. This unity is indicated by a good or normal interaction among thre components
in a social system. It was interaction, not components, that become the main focus of the
systems’ view. A social system will work properly if all components can interact normally.
Good quality interaction among the components will stimulate the full participation of the
components so as to function proportionally, which in turn, maintains unity. This condition
requires a balance or equality. In a legal context, this term can be interpreted as justice.
Therefore, justice sould be dedicated to maintaining unity and sustainability. The legal
consequence is that all interaction systems either at the political, economic, social, and cultural
level should be devoted to creating and strengthening the unity and sustainability of collective
life. Thus, all development programs which ignore the main mandatory element of systems
become invalid.
Regarding the utilization of ITNR, the deep inside message of the system phenomenon,
which posit unity as constitutive elements of a sustainable system, 79 can be considered as meta-
principle. This unity is reflected by the interconnectedness.80 The sustainability of unity in social
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system will be ensured if the self-organisation principle is equipped by (or built in) some other
principles such as: (i) self-correction81 (ii) self-protection.82 Systems will not work and functions
normally if component of social system has no regular intake or input, in forms of energy and
material83( in certain quality and quantity). In maintaining a balanced structural coupling with
nature, in order to produce relevant intake (input) for social system as well as to preserve the
sustainability of the natural system, patterns of interaction of the two systems (social and
natural systems) should capable to produce a congruent structural drift84.
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and nature will produce several second order phenomenons, such as: science, knowledge, and
technology, and concepts of property rights.86 It should be noted that the second order products
are instruments to support the sustainability of system. As complementary instruments, their
values hierarchy are lower than unity and sustainability. Thus, qua values of science,
technology, art, and natural resources are just instrument. Therefore, its legitimation cannot
surpass the need to maintain unity and sustainability.
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also:; Maturana, HR, Autopoiesis, Structural Coupling and Cognition, at http://www.isss.org/maturana.htm,
Maturana, Humberto, and Francisco Varela, The Tree of Knowledge: The Biological Roots of Human
Understanding, Boston: Shambhala / New Science Press, 1987. Revised paperback edition released in 1992;
See also: Encyclopedia on Cybernetic and Human Knowing, Structural Coupling, available at:
http://www.imprint.co.uk/thesaurus/structural_coupling.htm
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5.2. In Search of A Legal Framework: An Insight into Pancasila
Before embarking on a further discussion of these theoretical frameworks, it is important
to outline the ideal state of the social order87 in managing information, knowledge, technology
and natural resource –land and biodiversities- in Indonesia. The ideal state of social order can
be traced through the Pancasila88 as the grand norm of Indonesian positive laws. Hierarchically,
after the Pancasila, the Indonesian positive law source is the 1945 Constitution. In its preamble,
the 1945 constitution sets forth the Pancasila as the embodiment of basic principles of an
independent Indonesian state.89 To put it succinctly, and in the order provided in the
constitution, the Pancasila principles are: (i) a belief in one supreme God90; (ii)
humanitarianism91; (iii) the unity of Indonesia92; (iv) democracy93; and (v) social justice.94
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For achieving the ideal state of social order, the Indonesian government introduced national
development based on the Pancasila and the Undang Undang Dasar 1945 (the 1945
Constitution)95. Theoretically, all laws emanate from the Pancasila and the 1945 Constitution.
Thus, the logical and juridical consequence of this notion constructs Pancasila as principle
foundation of the truth value, which legitimates other legal concepts. In this case, the Pancasila is
the source of the law’s goals (rechtsidee), which establish and structure a fundamental foundation
for general legal principles in Indonesia. The five basic principles of the Pancasila are stipulated in
the four main ideas of the Preamble to the 1945 Constitution.96
The Pancasila and the Preamble to the 1945 Constitution are considered as the axiom of
Indonesian legal endeavours, i.e. managing information, knowledge, technology, and natural
resource, including land and biodiversities, which covers: (i) the legal objectives; (ii) the legal
resource97; (iii) social justice98; and (iv) legal protection aspects.99 The first main idea refers to the
legal objectives, which govern society’s interests (emerging rights and duties) as determined by
God.100 In this case, law emphasises the importance of a balance being drawn between rights and
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duty.101 Thus, any action to help each other is necessarily an obligation to fulfil the need of
sustainable collective life. This condition requires that every human being should act based on
justice and civilised rules. In this case, they should maintain their own existence and each other’s
existence they even have an obligation to maintain other forms of life.102 The harmonious
relationship between rights and obligations is a must. Therefore, it requires legal protection. Thus,
clearly, there is a strong link between moral and positive law. In this context, positive law must be
in accordance with morals103. Law should help human beings to develop their existence and
potential based on their nature: conserving the dignity of human beings, maintaining justice,
ensuring equality and freedom, developing public interest and welfare.104 Those terms (social
justice, social function, public interest, human dignity, the greatest benefit of the greates number)
are the core constitutive elements for creating and strengthening unity and sustainability.
Based on the above description, the general legal principles, legal theories, legal dogma and
legal practice concerning the just utilisation of information, knowledge, technology and natural
resource should emanate from the grand norm. In Indonesia, basic concepts of justice can be
explored from the social justice concept within the framework of the Pancasila. Consequently, all
laws and regulations relating to the utilisation of information, knowledge, technology and natural
resources, including land and biodiversities should take into consideration the greatest benefit of
people based on social justice105 in the Pancasila and the 1945 Constitution. This reason is reflected
in a series of Indonesian intellectual property, research, science, and technology legislative Acts
which refer to the Pancasila and the 1945 Constitution.
In order to optimise inforation, technology and natural resources towards the greatest
benefit of people, it will be useful if this research also elaborates argumentations on public
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interest and the social functions of inforation, technology and natural resources.106 Therefore, a
discussion of legal principles,107 which govern the relationship among the government’s rights,
public rights and individual rights in utilising information, technology and natural resources
based on social justice,108 becomes more important. Theoretically, all legal products, inter alia,
legislative and executive products, individual and collective products, such as contracts in
utilising information, technology and natural resources, should be in accordance with the
Pancasila and the 1945 Constitution109. Thus, in practice, those legal principles should provide
guidance to settle various disputes emerging from conflicts of interest in controlling important
and vital information, technology and natural resources.110
As a welfare state, Indonesia should prepare a national development111 programme to
improve societiy’s welfare. This duty is derived from two main ideas: (i) the State should facilitate
and accelerate the fulfilment of citizen’s rights112, and (ii) the State should integrate economic
factors into social justice113. In terms of law, the phrase “for the greatest benefit of people” is the
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ultimate goal in utilizing information, technology and natural resources.114 The ultimate goal is
the people’s interest, so the utilization of information, technology and natural resources should be
used in an appropriate (efficient) manner.115 The character of this ‘appropriateness’ is absolute.
This concept will be a significant if it is included in positive laws.116
Admittedly, that manifestation of “the greatest benefit of the people” cannot be easily
explained. Therefore, it is essential to identify the constitutive elements or the main characteristics
of the phrase “the greatest benefit of the people”, either explicitly or implicitly117. Through
interpretation, the complete meaning of “the greatest benefit of the people” is any fruitfulness or
usefulness that can be accessed and reached by anyone on equal basis. If the phrase “the greatest
benefit of people” is linked to the end-result of law, it can be interpreted as fulfilling usefulness
for all.118 The meaning of the phrase relates to the manifestation of appropriate policy, which is
determined based on law (legal validity). It has a strong correlation with the demand for justice,
such as balanced interests, public order and legal certainty. The question that immediately arises
whether social justice under the Pancasila can be linked to legal validity and appropriateness?
The answer is to measure the legal validity and appropriateness; all development programmes to
achieve “the greatest benefit for the people” should be devoted to manifesting social justice
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(based on the Pancasila) through maintaining balanced interests without ignoring public order
and legal certainty towards unity and sustainability of collective life.
5.3. Exclusive Rights, Freedom of Contract, the Social Function and the Public Interest for
Sustainability
One of the main challenges in visualising the concept of the greatest benefit for the people is
how to interprete, elaborate and embody this into positive laws. It is important to provide legal
certainty and to avoid inconsistency between the ultimate goal and the utilization of information,
technology and natural resources (ITNR). This is important because utilization of ITNR is
frequently inconsistent with the ultimate goal. In practice, certain people, corporations or
institutions that control ITNR, through state grants, technology trading, or other valid methods,
do not use or optimize it properly. In this context, several important provisions related to social
functions, national interests, public interest in regulating ITVR under the patent regime become
more relevant.
In Indonesia, the social function is meant to restate the fact that the exclusive right has a
social function.119 This is like Notonagoro’s concept that underlies the concept of social function
on the land. He started from the point of ciew of the state’s authority. Because of the state is
personification of people, so the state has authority and power to guarantee the social function120,
i.e. ITNR. The authority of state means the state’s authority to regulate and maintain collective
life. So, if we focus on ITNR, it means that we develop and make efforts to regulate anything
concerning ITNR. From the above description, apparently the State has a certain authority to
emphasize the characteristic of the social function concerning the ITNR that should be manifested
based on the public interest principle.121
Normatively, Indonesian intellectual property legislation regulates those issues. For
example, the Indonesian Patent Act contains the concept of the social function, which is used to
restrict the implementation of patents. The concept of social function in patents is derived from
the concept of harmony and balance between rights and obligations. It means that the social
function must ensure personal rights, but if it is faced with public or national interests, the public
or national interest must first be considered without ignoring personal rights122. The restriction
relates to the provisions concerning the implementation of patents in Indonesia, such as
compulsory licenses, the implementation of patents by the government, the defence and security
of the state123, and the national interest.124 Unfortunately, these provisions have not worked
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properly because they they do not yet have an implementation regulation. Consequently, they
become “catch all” articles, and leave legislators and judges to expand a wide discretion policy
regarding the social function, public interests, and national interests. This leads to the legal
uncertainty in intellectual property.
Actually, this weakness can be delat with by involving the Indonesian competition law,
which also provides strong protection for the public interest, the social function and the national
interest.125 Principally, the laws are most likely to be useful in meeting their goals as long as: (i)
the legal rules and frameworks for analysis are clear; (ii) the derogations from market-based rules
are clear; and (iii) decision making is transparent and agency and court discretion is limited.
Unfortunately, in the implementation of Indonesian competition law, the government tends to
face serious challenges due to large-scale ambiguities of a wide range of discretion.126 Therefore,
the Pancasila and the 1945 Constitution providing guidance to Indonesian law and regulation on
how to think and to act for the utilisation of information, science, technology, soil, water, and
other internal resources should be differentiated in clear legal rules and framework analysis.
Thus, the management and implementation of Patent Law and other Laws concerning
information, science and technology127 should be based on the Pancasila. This concept contains
several principles: (i) the principle of the States’ authority; (ii) the rinciple of the utilisation of
ITNR for the greatest benefit of the people; and (iii) the principle of social justice as contained in
the Pancasila. To simplify the concept, the first principle relates to the status of ITNR in Indonesia,
and the second and the third principles concern the utilisation and optimization of ITNR, which
are measured by two determinant indicators: (i) for the greatest benefit of the people; and (ii)
social justice. Those principles limit the state’s authority to control (master) the utilization of
ITNR.
The term mastery implies the state’s authority in using and optimising ITNR. With regard to
the concept of mastery, the State, as the sovereign organization, should be considered as the
organization of the people’s power. Therefore, it is not relevant to assume the state’s authority
like ownership theory (domein verklaring). The state, as the organization representing sovereign
people, has authority to regulate: (i) the availability, utility, and optimization of ITNR; (ii) the
determination and regulation of the legal relationship between individuals or institutions (legal
subjects) and information, knowledge and technology (legal objects). An indicator that can be
used to measure the limits of the legal subjects in utilising these legal objects is the term ‘the
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greatest benefit of the people’. Therefore, the concept of the utilization and optimization of
intellectual products for the greatest benefit of the people should be embodied in a concrete
statement. It requires that: (i) any grant, utilization, and optimization of ITNR; (ii) any
determination and regulation of the legal relationship between individuals and ITNR; and (iii)
any regulation and legal relationship between individuals and legal action concerning ITNR,
should be dedicated to achieving the greatest degree of benefits for the people.128
Various works in the literature (legal, political and economic) show that there are several
influential factors in governing ITNR, such as: (i) general legal principles (existing at
philosophical level); (ii) legal theory; (iii) legal dogma; (iv) law in practice; (v) the politics of law;
(vi) power, authority and coercion; and other non-legal elements, such as economic, social, and
cultural elements. Every influential legal element contains an interest in constructing the existing
patent regime and its implementation, because law emerges from interaction among the legal
elements. In this case, each factor has a strong substantial and interelated link to produce existing
laws. For that reason, every legal element at every stage of the legal endeavour, either at a
philosopical, theoretical or practical level should be devoted to creating justice for the greatest
benefit of the people. Those factors, which regulate the granting and utilization of ITNR can be
framed as follows:
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This model proposes that any granting of rights concerning utilization of information,
technology and natural resources (ITNR) obliges rights holders to use and optimize ITNR based
on the rights and obligations determined by the above factors. The State, through government,
regulates the rights of access to ITNR. The regulation is determined by purely legal factors (legal
technique) and the influence of non-legal factors, such as economic, social, and cultural elements.
Political and coercion factors, in a legal context, also influence the regulation and provision of
granting rights in ITNR, as well as their utilization, and optimization. Thus, politics, coercion, and
rights, taken altogether, form law129. Accordingly, law in practice should not contradict legal
dogma, legal theories and general legal principles. All stages in appreciating law should be
devoted to creating social justice towards the greatest benefit of the people in frame of unity and
sustainability.
In this case, the determination of granting rights, inter alia, rights in ITNR, falls under the
state’s authority. Through this authority, based on law, the government can create appropriate
models for using and optimizing ITNR towards the greatest benefit of the people. One of the most
important government obligations is to provide legal protection to the public interest and social
function in utilising ITNR. To interpret and elaborate the obligation, the government should
consider the main notions in the preamble to the 1945 Constitution, which provide a fundamental
foundation for determining the public interest and social function. This is because, theoretically,
the terms (values of) public interest and social function are considered as general legal principles
which stem from the main notions in the Preamble to 1945 Constitution.
Indeed, the concept of the social function and public interest are universal values, which
match Indonesian values. For example, sustainability (keberlanjutan), unity (keutuhan), harmony
(keserasian, keselarasan), equality and justice (keseimbangan, keadilan), and equity (kepatutan).
Principally, regarding ideal values, there is no significant difference between Pancasila values
(crystallized Indonesian values) and universal values that have been recognized by people all
over the globe, such as public interest and social function and the greatest benefit of people in
frame of unity and sustainability. Thus, the ideal values should be posited as a basic
consideration to implement the national development programes, including the exploitation of
ITNR.
6. INTEGRATED LEGAL FRAMEWORK FOR THE SUSTAINABLE COLLECTIVE LIFE

The optimisation of information, technology and natural resources (ITNR) can be achieved
by implementing the sharing of the common good –i.e. ITNR-. For this purpose, at a global level,
some strategic interrelated steps can be established in order to create the ‘common good’, i.e. for
the South-North flow of information: (i) the establishment of a sustainable global knowledge
society130; (ii) determining how people from the developing world, e.g. Indonesian people, are
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understood and perceived by the North.131 At the national level, in order to create the ideal legal
framework for managing and optimizing intellectual products and natural resources (ITNR), the
Indonesian government can identify and embody Indonesian laws, which link and match
universal values, into the Indonesian legal system.
# The core values of Indonesian (universal) laws, such

Meta-values/
9 as sustainability (keberlanjutan), unity (keutuhan),
principles
= harmony (kehamonisan, keserasian, keselarasan), equality
6 (keseimbangan), equity (kepatutan).
General Law # Philosophy of Right/

Principles Exclusivity/ Freedom/!
5
8 The inventor doctrine
(patent systems) and
Legal Theory 5 freedom of contract
Patent Act, Antitrust

6 Act, Contract Law,
G
Legal Civil Code, Investment
and other Biodiversitiy
Dogmatic 9 Protection Leislations
Optimising Exclusive Right

Legal STRUCTU (Information and Technology
RE AND andContract
Practice CULTURE
The institutionalization of the universal values into the positive laws can be implemented
through various methods. Several alternative strategies towards the ideal legal framework for
utilizing ITNR for Indonesian people can be realised by: (i) modifying the significant or essential
legal icons and institutions of common law in accordance with the Indonesian legal system; (ii)
enacting local laws which contain general legal principles in the existing intellectual property law
systems; (iii) changing the existing intellectual property laws (legal amendments) through sui
generis, optimising contract law. Then, the substantial reformation should be followed by the
creation of an equal distribution of justice in managing ITNR in corridor of unity and
sustainability. This goal can be manifested through structural reformation, for example preparing
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appropriate mechanisms for sharing the benefits, establishing a global moratorium institution for
managing and distributing sensitive and essential intellectual products and natural resource –
biodiversities-to most people.132
The above ideas can be embodied in various efforts to optimise the production and
dissemination of ITNR, for example through fair contracts in technology transfer. At the technical
level, for example, the strong legal framework should accommodate and integrate any interests
(balance in individual or public interest, social function) in order to guarantee fair and just
transactions for contracting parties. This can be manifested in integrated and planned law reform,
either at the level of substance, structure or the culture of law. At the substance level, the reform
of the patent system and other related pieces of legislation should consider any relevant socio-
economic context because, historically, intellectual property rights –patent - developed as a
response to local needs133. Thus, it is wise to formulate the patent provisions by considering the
local values. Accordingly, the values can be used to formulate certain provisions in protecting the
public interest, the social function, the national interest and in maintaining a balanced position
among contracting parties in optimising the production and dissemination of ITNR, for example
through technology transfer134. In this case, the core values of Indonesian laws, such as those on
sustainability (keberlanjutan), unity (keutuhan), harmony (kehamonisan, keserasian, keselarasan),
equality (keseimbangan), equity (kepatutan), may be embodied in related legislation and their
implementation regulations, such as the Patent Act, Antitrust Act, Consumer Protection Act,
Confidentiality Obligations in Respect of Know-How, Contract Law, Civil Code, and Investment
Law.135 Even though most provisions of the Indonesian laws are abstract and stem from the
ethical domain, theoretically they can be embodied in positive laws. For embodying the concept
of wisdom, it is interesting to note the importance of ethics in the law, like Radbruch’s illustration
in his Social Theory of Ownership.136
Then, at the structural level, the law reform can be directed towards promulgating the
provisions in order to develop skilled professional staff and users in society -in the industrial and
commercial world under frame unity and sustainability-. In this case, the Indonesian Patent Act
and contract law and other related legislation could be empowered to stimulate improvements in
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the quality (professional and ethical aspects) of human resources in Indonesia137. Certainly, this
effort should be followed by reforming the institutional role and function of the patent regime
and contract law system, and the establishment of supporting institutions (a collecting society for
essential ITNR) in optimising the production and dissemination of ITNR. In this case, we can
build a kind of global moratorium institution, which will distribute the essential intellectual
products and biodiversities to maintain the sustainability of collective life.138
7. CONCLUDING REMARKS
If we fail to create appropriate global norms (universal acceptability), the problem of
incoherency in legal systems (substance, structure and culture of law) concerning utilization of
biodiversity remains largely unresolved. Consequently, conflicts over resources (ITNR) continue
to occur, which in turn to create the tragedy of the commons and the tragedy of an anti commons.
An absolute exclusive right in patent and free will in contract has the potential danger to
create the tragedy of the commons and the tragedy of an anti-commons, which may threaten and
be detrimental the sustainability of our collective life. Therefore, the exploitation of exclusive
rights should be controlled by an ideal legal framework in order to nurture justice as the basic
requirement for creating unity. Consequently, all development programes, including the
optimisation of information, technology and natural resource (ITNR) either at the national or
international level, should be dedicated to maintaining justice for unity and sustainability of
collective life.
For resolving the dilemma between economic and public interest, either at the national or
international level, it is relevant to consider the above alternative strategies to create this tailor-
made inventor doctrine (patent law)139, particularly in Indonesia. Additionally this tailor made
patent law should be followed by reappreciating and reconstructing the meaning of the freedom
of contract under unity and sustainability framework. It can be restarted from with a re-
examination and re-evaluation of the exclusive principle under the patent regime and freedom of
contract by considering the social function, the public interest and the greatest benefit for
humankind in corridor of unity and sustainability of collective life.***
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139 This suggestion is sparked by Professor Grosheide’s idea of the creation of tailor-made copyright law. In this
context, Professor Groseheide offers two options: (i) to replace the static uniformity that characterises the
current national and international copyright law with a dynamic pluriformity, and (ii) creating the possibility
of a tailor-made copyright law. See: F.W. Grosheide, Autersrecht op maat, Deventer, 1986, Summary in English,
311-317; F.W. Grosheide, “Copyright and Publishers’Rights: Exploitation of Information by a Proprietary Right,
in Willem F. Korthals Altes, et.al. (ed), Information Law Towards The 21st Century, Information Law Series,
Kluwer, 1992, at.295-296. To manifest the notion, it is necessary to create the tailor-made patent law, based on
the unity and sustainability of collective life.
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Wellman, Carl (1999) The Proliferation of Rights: Moral Progress or Empty Rhetoric?, Boulder,
Colorado: Westview Press.
White, Alan R. (1984). Rights, Oxford: Basil Blackwell.
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(ed), Dilemma of Law in Welfare States, Walter de Gruyter, Berlin, New York, 1986
Willem F. Korthals Altes, et.al. (ed), 1992, Information Law Towards The 21st Century,
Information Law Series, Kluwer.
World Bank, 1994, Indonesia: Environment and Development. A World Bank country study.
Washington D.C., International Bank for Reconstruction and Development.
WRI, IUCN, et al. (1992), Global Biodiversity Strategy: Guidelines for Action to Save, Study, and
Use Earth's Biotic Wealth Sustainably and Equitably, World Resources Institute (WRI),
The World Conservation Union (IUCN), United Nations Environment Programme
(UNEP)
WTO Deal Paves Way for More Important Negotiations’, September 11, 2003, at:
http://freedomtotrade.org/page.php
! " "# $
% &
,,
Yelpalaa, K., “The Third World Perspective on Technology Transfer” in Yelpaala, Kojo,
et.al., (ed), 1988, Licensing Agreements: Patents, Know How, Trade Secrets and Software,
Kluwer, at 216.
Yolton, John W., 1958, Locke on the Law of Nature, 67 PHIL. REV. (1958)
Yuni Ekawati, “Dari COP-7 CBD: Membagi Keuntungan Pemanfaatan Hayati dan Hutan
Lindung” (From COP 7 CBD,
Zweigert, Introduction to Comparativ Law, Teaching Comparative Law, in
http://www.ejcl.org/64/art64-4.html.retrieved at 20 February 2005.
International Conventions
TRIPs Agreement, Paris Convention, Bern Convention
Several International Conventions have been ratified by Indonesia, such as: CITES and
RAMSAR Convention, Convention on Climate Change and Convention to Combat
Desertification and Draught
Acts
The Indonesian Civil Code
The Indonesian Competition Law
The Law No.18/2002 Concerning National System of Research, Development, and
Application of Science and Technology
Law No. 5 of 1967, concerning Basic Provision on Forestry Management
Law No. 11/1967 concerning the The Basic of Forestry Law
Law No. 9 /1985, concerning Fishery;
Law No. 5/1990, concerning Conservation of Living Natural Resources and
theirEcosystems
Law No. 12/1992, concerning Plant Cultivation;
Law No. 23/1997, concerning Environmental Management; and their elaboration into
government, presidential, ministerial and the subordinate decrees.
A series of patent legislation:

Law No. 6/1989 on Patent (Indonesian Patent Act) in (Staatsblaad RI 1989 No. 39)
Law No. 13/1997 on Patent (Indonesian Patent Act) on Amandment of the Indonesian
Patent Act No.6/1989 (Staatsblaad RI 1997 No. 30)
Law No. 14/2001 on Patent (Indonesian Patent Act) in (Staatsblaad RI 2001 No. 109)
Law No.18/2002 concerning National System of Research, Development and Application
of Science and Technology
Cases
Diamond v Chakrabarty
Ayahuasca Patent Case
! %, &
Magazines/Newspaper
! " "# $
% &
,E
“Ditinjau dari Segi Inovasi, UU Hak Paten Belum Perlu” (From the Innovation Side, the
Patent Act is not Necessary) KOMPAS (23 June 1989)
“Freeport: Kesalahan Kontrak Karya Harus Ditanggung Bersama” (Freeport: Mistakes in
Contract of Works should be Collective Responsible),
http://kontak.club.fr/Sekitar%20masalah%20Freeport%20di%20Papua.htm
“UU Paten Bisa Memberi Jaminan Para Investor” [The Patent Act can Give Security to
Investors] KOMPAS (19 June 1989)
Republika, “Enam Juta Hektare HPH akan segera Dilelang”, (6 million Hectares of Forest are
Ready to be Auctioned), Republika (28/12/98).
! " "# $
% &

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MANAGING UNCERTAINTY AND

COMPLEXITY IN THE UTILIZATION OF

Presented at International Workshop

MANAGING UNCERTAINTY AND COMPLEXITY IN THE

Keywords: Inventor Doctrine, freedom of contract, Biodiversity, Pancasila,

2. UNCERTAINTY AND COMPLEXITY: MAPPING PROBLEMS

cases of misappropriations in the exploitation of intellectual products10 and over-exploitation of

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worldwide. The impact of an unequal information, knowledge and technology distribution

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3. The Implication of the Inventor Doctrine and Freedom of Contract in Biodiversity

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legal structure of IPR LEGAL STRUCTURE: Excutive, Legislative,

4. RE-EXAMINING THE CONSTITUTIVE ELEMENTS OF THE EXCLUSIVE RIGHTS AND

peoples'interests in optimising information, knowledge and technology50 and biodiversities

4.1. Biodiversity under Patent Regime - Inventor Doctrine-: Indonesian Case

4.2. Biodiversity under Freedom of Contract

5. THE TAILOR-MADE PATENT (INVENTOR DOCTRINE) AND FREEDOM OF

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6. INTEGRATED LEGAL FRAMEWORK FOR THE SUSTAINABLE COLLECTIVE LIFE

# The core values of Indonesian (universal) laws, such

General Law # Philosophy of Right/

Patent Act, Antitrust

Optimising Exclusive Right

Albar, I. (1999). Indonesian Biodiversity. 1999.

Grosheide, F.W., 1992, “Copyright and Publishers’ Rights: Exploitation of Information by

Directorate General of Higher Education, Department of National Education,

Maturana H, 1970. Neurophysiology of cognition, in GARVIN, P (ed) 1970, Cognition : A

Takirambudde, P. N., 1980, Technology Transfer and International Law, Praeger

A series of patent legislation:

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