Question
Does Malaysia law permit shifting the burden of proof to the alleged infringer to show that their process does not infringe in the following two scenarios.
(a) manufacture within the country by the alleged infringer, or
(b) importation by the alleged infringer from another country.
Answer
As far as the Patent Laws are concerned in Malaysia, the answer for scenario (1) and (2) is identical wherein, if the patent in question is granted in respect of a process for obtaining a product, the burden of proof shifts to the alleged infringer to prove non-infringement of the process, even if the process is conducted outside of Malaysia but the resulting product is then imported into Malaysia.
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