RECONCEPTUALIZING PATENT EXCLUSIVITY UNDER THE BBNJ AGREEMENT: A COMPARATIVE STUDY OF INDONESIA AND MALAYSIA

Abstract

The entry into force of the Agreement on the Conservation and Sustainable Use of Marine Biological Diversity of Areas Beyond National Jurisdiction (BBNJ Agreement) has generated new legal challenges for national intellectual property regimes, particularly in relation to patent exclusivity over inventions derived from marine genetic resources (MGRs). This paper examines the urgency of harmonizing patent law in Indonesia and Malaysia to ensure normative alignment with the BBNJ Agreement and the broader framework of the United Nations Convention on the Law of the Sea (UNCLOS). While patent law is traditionally founded upon the grant of exclusive private rights, the BBNJ Agreement advances principles of non-exclusive access, fair and equitable benefit-sharing, and the concept of the common heritage of mankind, thereby revealing a fundamental conceptual tension between the two legal regimes. Employing a normative legal research methodology, this study adopts statutory, conceptual, and comparative approaches to assess the extent to which the existing patent laws of Indonesia and Malaysia accommodate BBNJ obligations. The urgency of harmonization is reinforced by international treaty law, particularly Articles 26 and 46 of the Vienna Convention on the Law of Treaties, which require States Parties to perform treaty obligations in good faith and preclude reliance on domestic law as justification for non-compliance. Given that both Indonesia and Malaysia have ratified the BBNJ Agreement, the persistence of unadjusted patent regimes risks creating normative inconsistency and regulatory fragmentation. Harmonizing patent law with BBNJ principles carries strategic and political significance. Such alignment may strengthen Indonesia’s and Malaysia’s positions as responsible maritime States, enhance their credibility in global ocean governance, and contribute to the consolidation of maritime influence within the evolving international legal order. Ultimately, this study contends that patent law harmonization constitutes both a legal necessity and a strategic imperative in the post-BBNJ era.