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Malaysia: Nehemiah Reinforced Soil Sdn Bhd v Patrick Cyril Augustin & Anor: High Court’s Decision Upheld by Court of Appeal

1st April, 2013

Recipients of our e-newsletters will surely recall that we had reported in February 2012 that Malaysian High Court in Shah Alam had declared Patrick Cyril Augustin & Anor’s Malaysian Patent No. MY-103619-A to be invalid. Patrick Cyril Augustin & Anor had filed an appeal against the decision and recently, the Court of Appeal upheld the High Court’s decision and declared the patent to be invalid.

By way of history, Patrick Cyril Augustin & Anor (hereinafter referred to as “the Appellants”) had a patent registered in their name which was related to retaining walls. The Appellants had licensed the patent to Nehemiah Reinforced Soil Sdn Bhd (hereinafter referred to as “the Respondent”). The Respondent had commenced the present case in the High Court seeking an order to invalidate the patent on the grounds of lack of novelty, inventive step and insufficiency of description. The Respondent had also sought a declaration that neither the use of the process of building a retaining wall called “Anchor Earth System” as described in the Statement of Claim nor the said “Anchor Earth System” considered as an article nor the supply therefor to third parties constitute an infringement of the Appellants’ patent. Further, the Appellant had counterclaimed for the payment of arrears of fees pursuant to the licensing agreement with the Respondent.

The High Court had allowed the Respondent’s claims thereby declaring the Appellants’ patent invalid. The High Court had further rejected the Appellants’ counterclaim and ordered that the license fee paid by the Respondent to the Appellants be refunded.

After hearing arguments from counsel for the Appellants and the Respondent, the Court of Appeal found that there was no basis for it to interfere with the decision of the High Court and accordingly affirmed the decision of the High Court and dismissed the appeal with cost.

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