Seeking Malaysia Patent Protection - the better way
Malaysian manufacturers are going head over heels to secure patent protection in order to stifle competition. And the first thing they think about is to secure a patent for their product. Seems like a legitimate enough move. Well, we would like to advise that it is not easy to secure a patent grant in Malaysia the reason being that it is not easy to prove that you have an inventive step. In our experience, we seldom encounter great local inventions. But we do very often encounter small inventions, the kind that is more aligned with small incremental improvement of what is available in the market. This is a no surprise thing because in terms of scale of technology, we are very low as compared to those middle income countries like Taiwan and China.
As a given, Malaysian companies spent very little in R & D and as such, have very little to shout about as far as technology count goes. It is also not surprising that Malaysia is in such a condition as she has been just a product substitution economy for that long. To say the least, she has been comfortable all these time, doing simple tasks that does not need the use of the brain. Where machines are concerned, all that needs to be done is to buy it from advance countries. Well, seems like there is not much going for Malaysian manufacturers then. Fortunately there is a way.
Coming back to patents; most patents that are filed here are foreign patents. It is not to say that we don't have Malaysian origin filings but it touches a very low figure. Now, out of those local filings that do proceed to their final phase, most do not succeed to a patent grant. The reason; no inventive step was found. How then do Malaysian manufacturers go about seeking protection for their products as we know that it is a common path for businessman to just go about copying anything that they can get hold of without a worry as to whether they can get sued? Another thing that we are aware of is that it has come to a stage that even if copycats are sued, they are not afraid but instead even recourse to seeking the underworld tugs to confront the victim with threats. So we will need a rethink as far as going for a patent is concerned. Our advice to businessmen is that instead of going straight to a patent, it would be a better choice to go for a Utility model that have such a lower threshold for patentability. There are a few reasons that make the difference:
* It is faster to procure (which matters as far as legally going after your competitor is concerned)
* It fits into the category of low technology country
* It is very difficult to invalidate in a court
* It is the most appropriate short term course of protection in our fast moving world
* At this time, it has the same protection period as that of a patent (in Malaysia)
Section 17 of the Malaysia Patent Act defines a utility innovation as: "any innovation which creates a new product or process, or any new improvement of a known product or process, which is capable of industrial application and includes an invention".
Utility innovations need only to be "new" and "industrially applicable" and unlike patents there is no requirement for an inventive step. This relaxed provision reflects the fact that this different breed of patents is only applicable to minor inventions, and is generally confined to improvements of a known product or process.
In the Malaysian scenario, where patent prosecution is often fraught with seemingly endless adverse reports, the option for filing a utility model application or the conversion from patent to utility model is the better path; especially when you need to secure a fast protection in the light of multiple competitors. Businessmen should be enlightened to view that it would be better to have little protection from a utility innovation certificate than to ultimately have no protection due to the failure of obtaining a grant of patent! We speak from our many years of experience with potential patent holders and we would like to advice entrepreneurs to go first for a utility model, then spend some money to do R & D to further improve their technology and then go for a full patent from there. Period.