The question of what can and cannot be patented is not as straightforward as it appears, especially if it is not a device with buttons one could poke at.
Consider the following and ask yourself if these can be patented in Malaysia:
Your grandmother’s recipe for deep-fried bitter gourd chips
The cure for Covid-19
An algorithm that assesses the trustworthiness of a person based on their appearance and assigns a score to that person
A mobile application
A nutritional supplement containing extracts from superfood A, folk remedy plant B and snake oil
The shape of an aircraft part
If you said yes, no, maybe, or ‘I’m not sure’ to any or all of the above, read on.
Patents are granted for "inventions" - any solution to a problem that is practicable in any field of technology. So it follows that you cannot patent a word, the appearance of an object or a type of plant. Other forms of IP protection, namely trade marks, industrial designs and plant variety protection are available to cover these types of intellectual property.
Additionally, just because you invented something, it does not mean that your invention automatically qualifies for a patent. The invention must be new, meaning that no other such invention already exists in the world; inventive, meaning that the invention is not obvious to a person in the same industry; and industrially applicable, meaning that it can be made or used in any industry.
While you can get a patent for a device, composition, medicament, process, method, or system, there are some things that cannot be patented. These are:
Discoveries, scientific theories and mathematical methods.
Plant or animal varieties or essentially biological processes for the production of plants or animals. These do not include man-made micro-organisms and related processes/products.
Schemes, rules or methods doing business, performing purely mental acts or playing games.
Methods for treatment of human or animal body by surgery or therapy.
Inventions that are contrary to public policy or morality.
Now that you know this, would you be able to determine if the earlier listed subject-matters are patentable? Let’s find out:
Your grandmother’s recipe for deep-fried bitter gourd chips
Maybe your grandmother’s deep-fried bitter gourd chips taste so heavenly, they immediately resolve disputes between quarrelling family members because everyone would be so preoccupied with consuming the chips that they forget their quarrels. As amazing as these bitter gourd chips may be, the recipe and finished product do not solve a problem in a field of technology so they are not patentable. Food processing methods that improve shelf life or preserve foods without affecting taste, however, can be the subject of a patent.
The cure for Covid-19
If the cure relates to a method, that method is not patentable. Do note that in some jurisdictions such as the US and Australia, medical methods are patentable subject matter. But any medicines, devices or chemical compounds that can be used to treat Covid-19 or any other illness can be patented.
An algorithm that assesses the trustworthiness of a person based on their appearance and assigns a score to that person
Algorithms are mathematical methods, so they cannot be patented. What can be patented, however, are devices or methods that utilize these algorithms to create a real and tangible result.
A mobile application
A mobile application is essentially a set of instructions that tells a device to perform certain operations (If A>B; then LOOKUP(D3:D24); Else…) so mobile applications and software in general are not patentable. What can be patented instead are inventions that are realised using such software which interacts with the hardware to produce a tangible result.
A nutritional supplement containing extracts from superfood A, folk remedy plant B and snake oil C
Mere combinations of natural products are not patentable, so good luck trying to patent a concoction of tongkat ali, maca root and dragon’s blood extracts without lab results proving its efficacy. In order for such supplements to be patentable, they must i) solve a problem in a field of technology and ii) demonstrate that the combination has synergistic/unexpected effect.
The shape of an aircraft part
If the shape of the aircraft part is purely ornamental and does not solve a problem then that shape is not patentable, but if the shape is functional and creates a special effect, e.g. causes mircoturbulent flows to reduce overall drag forces then the shape may be patented. Do note that unlike industrial design registration, the shape cannot be claimed in a graphical manner so the written description and claims must clearly define the shape that is claimed.
But what about gene-editing therapies, perpetual motion machines, deceased persons chatbots, MLM schemes, plastic-eating bacterium and AI inventions? Can these be patented? Granted, the given examples are not representative of everything under the sun that one would consider patenting, but hopefully, you now have a general idea of what can and cannot be patented. If you are ever unsure of whether you have a patentable invention, why not give us a holler? After all, we’re here to help.
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