Patents Act 1983 governs patent preservation in Malaysia.

Under patentability, a
development is characterized as a thought of a creator which allows in practice the answer for a
particular issue in the field of innovation. As it were, a patent is a restrictive right to forbid
individuals from generating, marketing, offering to sell, or utilize someone elses guaranteed
innovation for 20 years from the period of recording the patent claim.
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With the escalation in patent encroachment cases among Apple and Samsung and an
overview of redundancy indemnity in Malaysia, it is vital to identify the implications of the
patent encroachment and redundancy indemnity over the minor mediocre enterprise in Malaysia.
In the case between Apple and Samsung, the judge instituted that some of the Samsung items
illegally utilized some inventions of Apple such as the bounce-back feature and the zoom in
function with a finger tap.
Patent encroachment prosecution is amazingly extravagant contrasted with different sorts
of suit. On account of Samsung versus Apples, Samsung is obliged to pay $ 1 billion in
recompense for Apple Inc as Samsung damaged Apple licenses. It is usual even simply a typical
patent infringement lawsuit wound cost more than a million in legal fees. On the off chance that
you lose, you will be in charge of patent owners to pay damages to three times the potential
damages and lawyers' fee. Samsung and Apple, both of them are the business pioneers.
Consequently, they have sufficient monetary limit and capability to survive and regardless of the
fact that included in a patent encroachment claim. Unfortunately, for those little organizations,
lawyers' expenses just can lead them to liquidation. Accordingly, it may prompt expand in
expense of a little organization and will make those business people not set out to take risk in
advancement and innovation.
Plus, configuration thoughts are restricted, there are countless number of designs has
been enrolled in different organizations for their own intellectual property rights. In the cellular
phone industry, there are a considerable measure of distinctive organizations, including Sony,
Nokia, HTC. Subsequently, little organization needs to be mindful of patent encroachment when
outlines another item and audit customarily to lessen the possibility in patent infringement. An
illustration of patent encroachment in configuration, for example, Samsung Electronics has

1
Henry Goh& Co Sdn Bhd (1994-2014) 'A Guide To The Malaysian IP System', Patten, Trademark & Design Agents,
pp. 7.
"crisis of design" when it dispatched Samsung Galaxy Smartphone with a rectangle shape and
adjusted corner plan which the design had been enrolled by Apple Inc in the early time.
Other than that, the product or software already has copyright insurance; however
copyright does not ensure the key methodology of the product. In order to obtain protection from
patent, the creation of the organization must satisfy three conditions which incorporate new
development, new creative step and industrially relevant and acceptable. The production of the
organization should not have been accessible to the general population before the date of
applying must not be evident from the perspective of an individual skilled in the related field and
the innovation could be made and connected in any sort of industry. An organization may be
involved in a patent infringement when the organization's items or products and different
organizations have similar functions. Case in point, Samsung Galaxy Smartphone made a
"bounce back" utilitarian fingers and a zoom capacity, which is similar to the iPhone features.
The function is viewed as an infringement of Apple's patents. Notwithstanding, innovative work
process for a long period involves in creative steps to make another function involve high cost
and would be a colossal trouble for a little business to executing it.
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Most large organizations believe that the smaller organizations would not prosecute them.
This is exceptionally normal that a substantial organization to take control over the thoughts or
ideas of small business, and enrolled in their own intellectual property. The large organizations
do not seem to think about it as it has its protective patent to protect against its claims and this
opposing patent security or protection does not matter to small developers. Another reason is that
large organization believes that more small organizations would not sue them since they are
distinctive in size and monetary capacity. This is extremely injustice in a rival between a large
and small organization because the ability and capacity of a large organization is dependably
stronger than a small organization. Consequently, the patent holder might later offer the patent
right to a bigger organization on account of absence of monetary capacity to bear the cost of a
patent infringement claim.
Based on the case of Aventis Farma SA (m) Sdn Bhd v Rohibul Sabri bin Abbas
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, the
Plaintiffs asserted that the Defendants had encroached their Malaysian Granted Patent which is a

2
Paul Elias (2014) 'Apple wins $120 million in patent lawsuit against Samsung', The Star, Friday May.
3
[2008] 3 MLJ 451
methodology patent for the production of the DT (docetaxel trihydrate) was allowed to the
second plaintiff and the product or item acquired by this procedure patent. In this case, Justice
Vincent Ng ruled in favor of Aventis Pharma, which portrayed a technique for creating docetaxel
trihydrate, the dynamic element in a cancer drug sold under the brand named Taxotere. The
defendants produced and offer the non-exclusive version of the drug under the brand name
Daxotel.
The plaintiffs claimed that the defendants had infringed their Malaysian patent and
applied for an interim injunction to restrain the defendants from marketing Daxotel pending the
disposal of the infringement suit. The defendants contended that the manufacturing process they
employed was different and distinct from that claimed in the plaintiffs Malaysian patent. They
further opposed that cancer patients would grieve if the considerably inexpensive Daxotel were
taken off the market. At the point when conveying his choice to permit an application for
preparatory order in perspective of patent infringement, Justice Ng said that: "The facts may
confirm that the defendants' medication taken a toll less to cancer patients here, however pirated
compact discs, watches and Dvds sold in Petaling Street,kuala Lumpur are also extremely
inexpensive. It does not then follow that in light of the fact that such pilfered merchandise could
spare our purchasers extensive wholes of cash, it is in the public interest to excuse such
exercises.
The decision of the Court was established based on the values in the English case of
American Cyanamid v Ethicon Ltd
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in reverence of allowing an interlocutory injunction;
however the Court failed to address a number of significant matters in its reasoning, which
would have been expedient in illuminating those matters pertaining patent litigation.
The chance to assemble data from online networking locales for a patent encroachment
claim is amid the prefilling examination. Numerous organizations have their own particular
social media sites that supply data about items and deals that a patentee could use to assemble
proof of conceivable encroachment. A sufficient prefilling examination requires an analysis of
the characteristics comprised by the asserted claims, which, in certain cases, could be proficient
by scrutinizing digital color photographs. Assembling any and all photographs, portrayals, and

4
[1975] AC 396
videos of the alleged products or items from social media sites and other authority is an
exceedingly suggested part of a pre-filing investigation. Numerous corporations have set up
YouTube pages that comprise videos and parallel data about merchandises displayed by the
company itself. Correspondingly, corporations may have displayed manufactured goods data on
Facebook, LinkedIn, or Google+. These online networking sources could furnish statistics and
guidance significant to verify whether a target item comprises the alleged patented
characteristics.
Then, during trial, innovation requirements should be precisely personalized to the
appropriate statistics being pursued when aiming social media sources. The requirements should
thoroughly trace the proof prerequisite for each assertion or justification in the case. For the
patentee, this means that demands from social media will fundamentally emphasis on the alleged
items and the accused infringers acquaintance of the patent in suit. During official discovery, the
extra non-public portions of any social media sites used by the accused infringer will be vacant
for related data mining.
The patentee should investigate about the alleged infringers knowledge of the patent in
suit to explore conceivable replication and to display that the patent was maliciously infringed.
To indicate doubling of patented characteristics, there should be discovery appeals directed to
any content on social media sites associated to the patent-in-suit or items symbolizing the patent-
in-suit.
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The Malaysian High Court lately explained key principles in a patent infringement matter
in the case of Positive Well Marketing Sdn Bhd v OKA Concrete I ndustries Sdn Bhd
6
. The
patent at issue is for a riverbank system where Positive Well claimed that OKA had infringed the
patent by producing and marketing a comparable riverbank protection system deprived of its
consent or a certificate. Hence, Positive Well prosecuted OKA for patent infringement and OKA
counterclaimed for patent invalidation. The High Court held in favor of Positive Well and
established the validity of its patent. In its oral decision, the court approved the test for

5
Jennifer K. Gregory (2013) 'Beware Of Overshare: Social Media Discovery and Importance in Intellectual Property
Litigation', Review Of Intellectual property Law, 12(449), pp. 458-460.
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[2013] 8 CLJ 1083 [HC]
infringement that was used in the case of Rodi & Wienenberger AG v Henry Showell Ltd
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. This
case held a few key steps as the test for discovering patent infringement, for example, in
determining the essential integer of the patent, considering whether the essential integer is taken
by the defendant and determining whether each of the defendants integer work in the same way
as claimed by the plaintiffs patent.



7
[1969] RPC 367