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Since Malaysia’s entry into the TRIPS Agreement, it has been enacting several pieces of legislation and amended others in fulfilling its obligations under the said Agreement.

The Patents Act of 1983, was the first major change in the arena of Intellectual Property to receive attention from legislators and in 2002, the Act was amended via the Patents (Amendment Act) 2002 which received Royal Assent on the 14th of January 2002.

Many had hoped that the new round of amendments would specifically address the issue of software patents, but it is obvious that, despite the new amendments, the patentability of software remains in question.

The amendments have stopped short of clarifying the long standing uncertainty as to the patentability of software in the country. This uncertainty stems from the fact that the 1983 Act remains ambiguous as to the interpretation of Section 13(i), which lists items that may not be granted a patent in Malaysia. Amongst them, listed in sub-sections (a) and (c) are mathematical methods as well as schemes, rules or methods for doing business. Since the basis of all computer software are essentially (though albeit complex) mathematical methods of doing a particular act or business, there has always been concern that the 1983 Act has in essence ruled out in total, the patentability of software in Malaysia.

As it stands, the only form of protection granted to software developers remain under the Copyright Act 1987. The dynamic nature of software has always invoked debate as to whether they would be more appropriately protected by means of patents, as they are increasingly so in countries like Australia, United Kingdom and the United States of America. In these countries, software has enjoyed reasonable successes in being granted patents, reason being that software is being increasingly seen to be a patentable process rather than a mere mathematical method of computing results.

However, indications are rife that Malaysia is gradually adopting a similar stance. A leading Japanese electronics manufacturer recently successfully obtained a patent for a “traffic data system” that relies heavily on a proprietary computer software. Time can only tell if Malaysia adopts a similar approach to software patents.

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