A building contractor who asserted that it merely constructed buildings for the Malaysian Government according to technical drawings provided by JKR (the Public Works Department representing the Government of Malaysia) was held by the High Court to have:
- infringed Malaysian Patent No. MY114346-A granted to O-Stable Sdn Bhd (the patentee and the 1st Plaintiff)
- infringed the copyright subsisting in the technical/architectural drawings of the 1st Plaintiff
The MY114346-A Patent was in respect of a method of constructing a building using pre-cast wall panels, and either pre-cast or cast-in-situ columns.
The Plaintiff had informed JKR that the method of construction and the components were the subject of patent applications when it made a presentation of the system to JKR. A VCD containing technical drawings was also provided to JKR.
The decision of the Court is clear that using a patented technology without the consent of the patentee is an act of patent infringement and it is no defence to state that the “infringer” merely followed the instructions or used the technical drawings provided by JKR, the entity that engaged the contractor.
The Defendant also attempted to challenge the validity of the patent claims by arguing that the claimed invention lacked novelty and inventiveness, which the Court found was not supported by evidence.
The Court found there were material differences in the patented technology and prior art documents adduced by the infringer. On the issue of copyright infringement the Court found that the Defendant had substantially copied the technical drawings of the Plaintiff which the Plaintiff provided to JKR and where the latter adopted the drawings when it prepared the technical drawings that were given in the tender documents. Surprisingly the Plaintiff did not initiate any copyright infringement action against JKR for reproducing its technical drawings.
[Note: KASS acted for the patentee as its patent agent in drafting and prosecuting the patent application]