Your Patent Expired. Now What? A Court Case Shows Why Your IP Strategy Can't Stop There.

A recent Malaysian High Court case, Termguard Pty Ltd v. Rapidkill Pest Control (KL) Sdn Bhd [2025] 4 CLJ 952, is a masterclass in intellectual property strategy—or more precisely, a stark lesson in what happens when it falls short.

Here’s the situation: Termguard, an Australian company, held patents for a unique termite control system in countries like Australia, the US, and Japan. These patents had expired and were never registered in Malaysia. A local company, Rapidkill, began offering a system with similar functional elements.

Unable to rely on patent law, Termguard sued for copyright infringement and passing off, arguing that the drawings, diagrams, and technical literature describing their system were protected artistic works.

The court’s decision was a fascinating dissection of IP law:

1. Copyright DID Subsist: The court agreed that Termguard's technical drawings were original "artistic works" protected by copyright. They had expended sufficient effort to create them, and they were fixed in a material form.
2. But NO Infringement Was Found: Why? While the products were similar, the copyrightable expression wasn't. The court found only "minor" objective similarities (e.g., both used a reticulated coil system). The functional idea itself is not protected by copyright—only its original expression is. Termguard failed to prove that a substantial part of their specific drawings was copied.
3. Passing Off Also Failed: The court ruled that the functional design of a termite system (pipes, coils, etc.) is not a "distinctive get-up" that consumers associate with a single source. Customers buy these systems for their function, not because they recognise the look and feel as uniquely "Termguard's." Brand identity, not product design, drives recognition here.

The Crucial Takeaways for Every Business Leader and Innovator:

This case is a powerful reminder that a single IP right is rarely enough. A robust strategy is layered.

1. Patents are Powerful, but Temporary. Patents grant a monopoly for a limited time (usually 20 years) in exchange for public disclosure. When they expire, your invention enters the public domain. Your strategy must account for life after patent expiry. How will you compete when others can legally use the core functional invention?
2. Copyright is Not a Patent Substitute. Copyright protects expression, not ideas, procedures, or functions. You can stop someone from copying your instruction manual or technical drawings line-for-line, but you cannot use copyright to monopolise the underlying functional concept once a patent expires. Don't make the mistake of thinking they are interchangeable.
3. Build a Moat with Multiple IP Rights. A truly defensible position uses a combination of tools:
4. Protection is Territorial. A patent granted in the US offers zero protection in Malaysia. Your global commercial ambitions must be matched with a global IP filing strategy. Don't assume your home-country rights will protect you abroad.

The Bottom Line:

The Termguard case isn't just a legal dispute; it's a strategic warning. If you don't proactively and holistically protect your intellectual property, you are effectively leaving your proprietary information and market advantage on the table for competitors to exploit.

An investment in a comprehensive IP strategy isn't an legal expense—it's a critical business investment in your company's future viability.

What steps are you taking to build a layered IP moat around your business?

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