Legislative Implementation of Flexibilities - Malaysia

Title:	Patents Act No. 291 of 1983 as last amended on 2006
Field of IP:	Patents
Type of flexibility:	Patentability or exclusion from patentability, of software-related inventions
Summary table:

Provisions of Law

No explicit provision of Law

Guidelines for patent examination of 2011

3.6 Programmes for computers

A computer program is a set of instructions for controlling a sequence of operations of a data-processing system. It closely resembles a mathematical method. It may be expressed in various forms and may be presented in a format suitable for direct entry into a particular computer or may require transcription into a different format. It may be presented in terms either of software or in combination with hardware. A data-processing operation can be implemented either by means of a computer programme or by means of special circuits and the choice may have nothing to do with the inventive concept but be determined purely by factors of economy or practicality. With this point in mind, examination in this area should be guided by the following approach:

A computer programme claimed by itself or as a record on a carrier is not patentable, irrespective of its content. The situation is not normally changed when the computer programme is loaded into a known computer. If, however, the subject-matter as claimed makes a technical contribution to the prior art, patentability should not be denied merely on the ground that a computer programme is involved in its implementation. This means, for example, that programme-controlled machines and programme-controlled manufacturing and control processes should normally be regarded as patentable subject-matter. It follows also that, where the claimed subject-matter is concerned only with the programme-controlled internal working of a known computer, the subject-matter could be patentable if it provides a technical effect.

As an example, consider the case of a known data-processing system with a small fast working memory and a larger but slower further memory. Suppose that the two memories are organised under programme control, in such a way that a process which needs more address space than the capacity of the fast working memory can be executed at substantially the same speed as if the process data were loaded entirely in that fast memory. The effect of the programme in virtually extending the working memory is of a technical character and might therefore support patentability. Where patentability depends on a technical effect, the claims must be so drafted as to include all the technical features of the invention which are essential for the technical effect.

Where patentability is admitted then, generally speaking, product, process and use claims would be allowable