The court establishes that an invention can be patentable even in the fashion industry if it meets statutory criteria under the Patents Act.

(After trial)

A. Background

[1] This case raises a novel question of whether an instant (ready-to-wear and pinless) "hijab" (headscarf) is patentable under Patents Act 1983 ( PA ).

[2] The four plaintiffs (plaintiffs) are co-owners of Patent No MY-153705-A (Patent 705).

[3] The 1st defendant company (1st defendant) is a Malaysian company in the business of, among others, import and export of textiles. The 2nd and 3rd defendants are the directors and shareholders of the 1st defendant.

[4] The 2nd defendant is the 3rd defendant's husband. The 2nd defendant is a sole proprietor of a business, "Idaman Trading" (Idaman), which, among others, distributes and sells clothes and textiles.

[5] This action, filed by the plaintiffs, alleges that the defendants have infringed Patent 705 (Original Action) by distributing and selling Hyat hijabs product (Hyat Hijabs). The defendants have counterclaimed to invalidate Patent 705 (Counterclaim).

B. Issues

[6] The following questions are to be decided in this case:

(1) regarding Patent 705, who is the notional person ordinarily skilled in the art (POSITA)?;

(2) whether Patent 705 can be invalidated on any one or more of the following grounds:

(a) is the plaintiffs' ready-to-wear and pinless hijab (Bokitta Hijab) an "invention" under s 12(1) PA ?;

(b) whether Bokitta Hijab is "new" within the meaning of s 14(1) PA ;

(c) does Bokitta Hijab involve an "inventive step" as understood in s 15(1) PA ?; and

(d) whether Patent 705 has complied with s 23 PA read with regs 12(1)(c), (f) and 13(1) of the Patents Regulations 1986 (PR); and

(3) if Patent 705 is valid, whether the defendants' sales of Hyat Hijabs have infringed Patent 705 under ss 36(1)(a), (2), (3)(a)(i) and 58 PA .

C. Patent 705

[7] The five "Claims" in Patent 705 (5 Claims) provide as follows:

"CLAIMS

1. A ready-to-wear headscarf (100) consisting of a garment element (101) made out of a pieces of fabric material, the garment element (101) comprising: a head portion that covers a user's head, the head portion having a first side, a second side, a top section, a front side and a back side, the head portion containing a face opening at the front side, a neck portion encircling a user's neck, a neck opening located at the bottom of the neck portion, the neck opening is larger in size than the face opening; a series of stitched seams comprising a front seam, a back seam, and a central seam, the front seam extending along the front side of the head portion from a first end at a bottom of the face opening and intersecting a periphery of the face opening continuing upwardly along the first side to the top section of the head portion and then downwardly to an upper region of the second side of the head portion, the front seam is offset from the face opening periphery as it extends from the first side to the top section along to the second side, the central seam extends from the front seam at the second side across the upper region of the head portion to the back side of the head portion, the back seam extends from the central seam diagonally from the back side at the top section to the a lower portion of the back side adjacent to the neck portion; and the series of stitched seams form the garment element from a planar layer of fabric to the headscarf with overlapping fabric regions adjacent the series of stitched seams (Claim 1).

2. The headscarf according to Claim 1 wherein said garment element is comprised of one or plurality of panels sewed to create the said garment element (Claim 2).

3. The headscarf according to Claim 1 wherein the garment element is an ordinary scarf (Claim 3).

4. The headscarf according to Claim 1 wherein the garment element is a custom cut scarf (Claim 4).

5. The headscarf according to Claim 1 combined with a styling acce