Malaysian Federal Court Rules That Amendment During Litigation Is Not Allowed

In a new development, the Federal Court in Malaysia has held that due to the nature of the local legislation, when an independent claim in a patent is held to invalid, the dependent claims will also fall.

The case of SKB Shutters Manufacturing v Seng Kong Shutter Industries & Anor was a case of patent infringement with a counterclaim for invalidity. At the High Court, infringement was found and the invalidity counterclaim was dismissed. However, that decision was reversed in the Court of Appeal as it was found that the learned High Court judge had compared the prior art with the plaintiff's product and not the patent claims (which should have been the case) in assessing novelty and inventive step.