Introduction to Patent Protection
Patents are a form of intellectual property (“IP”) that give inventors exclusive rights over their inventions. In Malaysia, these rights are governed mainly by the Patents Act 1983 and the Patents Regulations 1986.
It must be noted that patent protection only applies within the country where the patent is granted. However, international agreements allow inventors to extend protection across multiple jurisdictions more efficiently. Malaysia participates in treaties such as the Paris Convention, the Patent Cooperation Treaty (PCT), and TRIPS, which help streamline cross-border filings and ensure minimum standards of protection.
What Qualifies as a Patent?
To be granted a patent in Malaysia, an invention must meet three main requirements:
- Novelty: It must not have been publicly disclosed anywhere before the filing date.
- Inventiveness: It must not be obvious to someone skilled in the relevant field.
- Industrial use: It must be capable of practical application.
Malaysia also recognises utility innovations (UI), which protect incremental improvements. Unlike patents, UIs only need to be new and usable in industry, but they are limited to a single claim.
Certain subject matter cannot be patented, including:
- Scientific discoveries and mathematical methods
- Medical treatment and diagnostic methods
- Plant and animal varieties
- Business methods and abstract ideas
Routes for Filing a Patent
There are several ways to apply for patent protection in Malaysia:
- Direct national application filed with the Intellectual Property Corporation of Malaysia (MyIPO)
- Paris Convention route, allowing applicants to claim priority from an earlier filing in another member country within 12 months
- PCT national phase entry, enabling international applicants to seek protection in Malaysia within 30 months from the priority date
The Patent Application Process
A patent application must meet specific technical and documentation requirements before submission to MyIPO.
Once filed, the application undergoes:
- Formal examination to check compliance with filing requirements
- Publication, usually 18 months after filing or priority date
- Substantive examination, where the invention is assessed against legal criteria
If successful, the patent is granted, published in the official gazette, and a certificate is issued to the applicant.
Duration and Renewal
A Malaysian patent lasts for 20 years from the filing date, provided annual renewal fees are paid. Failure to pay these fees will cause the patent to lapse and the invention will fall into the public domain.
Rights and Enforcement
Patent owners have the exclusive right to control how their invention is used commercially. This includes preventing others from making, using, selling, or importing the invention without permission.
If infringement occurs, the patent owner may take legal action in court. Available remedies include:
- Court orders to stop the infringement
- Monetary compensation or recovery of profits
- Seizure or destruction of infringing goods
Patent infringement in Malaysia is generally a civil matter and does not carry criminal penalties.
To minimise risk, businesses often conduct a freedom to operate (FTO) search before launching new products to ensure they do not infringe existing patents.
Conclusion
Patents play a crucial role in encouraging innovation by granting inventors exclusive commercial rights for a limited period. Understanding how patents are obtained, maintained, and enforced in Malaysia helps businesses and individuals protect their ideas while navigating potential legal risks.
