Please advise whether there is statutory protection system in Malaysia to define the owner's interest during this period from announcement to granting the patent after entering the Malaysian Phase.

A patent cannot be enforced after entering national phase until it has been granted.

 

However, an Applicant can issue a warning letter on infringement. The effect of issuing a warning notice is that:

 

1)    The Applicant has placed a constructive notice of infringement;

2)    Section 59 will apply upon grant;

3)    The damages from the act of infringement will be assessed from the date of constructive notice.

 

Section 59 of the Patent Act states: 

(1)  The owner of the patent shall have the right to institute Court proceedings against any person who has infringed or is infringing the patent.

(2)  The owner  of the patent shall have the same right against any person who has performed acts which make it likely that an infringement will occur, which in this Part is referred to as an “imminent infringement”.

(3)  The proceedings in subsections (1) and (2) may not be instituted after five years from the act of infringement.

 

For more information, contact us at: malaysia@mirandah.com