Israeli Company “Yozmot 33 Ltd.” Sued HTC. for infringement of a mobile-related European (UK) patent.

HTC argued the patent is invalid due to lack of novelty, obviousness, insufficiency, added matter and unpatentable subject matter.

This post is to say a few words about my view on cross examining in the Israeli legal system.

One thing that we should all remember is that all trials in Israel are bench trials. We have no juries. This means one big thing – these are professional judges and they have no patience. You cannot play around with them.

There are many techniques to cross exams but the key point to remember – with the first sign of the judge getting tired – GET TO THE POINT! (and preferably, get to the point beforehand).

OK, here it goes – the key point in winning a cross examination is this – know what you want the witness to say, and make him say that. Try not to make it more than three points.

The way to make them say what you want them to say is to ask them questions in such a way they will not understand what you want.

Lies – A few words about catching witnesses in lies – Witnesses in our country lie. It is relatively easy to catch them lying, but judges here won’t get excited. So – I always do that to crack credibility, but this is usually not a case winner.

Being polite – I am (almost) always polite to my witnesses. I noticed that when I start fighting with them, while they make themselves look bad and lie more, they also make me look bad and usually say nothing that I need. However, when I am nice to them they say more, and the more they say, they more they help me.

When I am polite, the judges also let me have incredibly long cross examinations, if I need them. They are usually not used to nice attorneys in their chambers (!)

Then, when I explain to them why the witness just buried himself, they are even happier to rule in favor of my client.

JUDGES DON’T LIKE NASTY LAWYERS. I know many of my friends will not agree.

Roger out from cross-exams.

A very common strategy in patent litigation is filing requests for cancellations of a patent (reexaminations in the US) and at the same time, motions to stay to the commisioner of patents.

While there is a lot of case law in common law jurisdictions about motions to stay, there is very little in Israel. I know of two decisions, in both of them a motion to stay was not granted, but in one of them the attorney who filed the motion did not even bother to enclose the cancellation request.

I also know of one case in which a motion to stay was granted, but the decision was not published, and I do not have it.

I currently have a case pending where I filed a motion to stay, but sadly for developing this important part of law and happily for my client, I got this suit erased for other reaosns.

General impressions – as everything in Israel, it depends on the judge. If the judge likes patent law, he will want to keep the case and to hear expert opinion on validity. If he doesn’t, he will rather get rid of the case and send it to the commissioner.

My view – I have a lot of critisizm on the commissioner of patents in Israel. There is at least one thing he does really good, though – patent cancellations and oppositions. There is no doubt the commissioner has more tools and more experience to handle such cases than the court with an expert opinion. Add this to the fact that Israel’s examination process is usually auto-grant,  based on other countries, and you get many patents who shouldn’t be there, and judges who think they are sacred.

As promised – here goes the first post about Israeli IP litigation

Well, you are considering beginning a trademark litigation in Israe, but who will hear your trademark case?

The first thing you need to know is that there is no IP court in Israel, and the regular court system hears IP matters.

Having said that, the commissioner of patents, trademarks and designs has jurisdiction to hear cases that have to do with the validity of trademark applications – competition procedures, oppositions, cancellations, etc.

So, basically, here are the relevant options:

-          Opposition or request to cancel a registered mark – the commissioner of patents, trademarks and designs. At the moment, in addition to the commissioner himself, there are two more “judges” (they are in fact called adjadicators) at the trademark office (we are proud to say that one of them is a “veteran” of our firm), who take most of the trademark cases. The current commissioner seems to prefer patent cases.

-          A suit that includes a motion to cease using a mark – since in most of the cases the plaintiff wishes the defendant to stop using his mark, he would have to address the district court. According to the Israeli law today, only the district court has an authority to grant such an order. Therefore, most of the intellectual property cases are filed in the district court, which is a relatively high court in Israel.

-          A suit only for monetary compensation – if a plaintiff has no interest in stopping the use of his mark (e.g. because the use of his mark ceised, or he wants to save cost), he can choose to waive his right to file a suit to the district court and file his suit in the magistrates court, instead. Filing a suit in the mesigtrates court can have advantages in touch cases, since the plaintiff has much more influence on the choice of venue and hence – on the choice of judge.

Location – there are a number of alternatives to choosing a venue for filing a suit. The most important ones are the place where the plaintiff or the defendant live or work, or the place where the infringment took place. However, a suit can be filed in any court in the same county in the relevant venue. Since Israel is a small country, this allows a lot of flexibility, and provides plaintiffs advantage in choosing the venue of the fight.

Israel is a common law system, based on the English legal system, with strong american emphesis, and some german and canadian emphesis. However, there are no juries in Israel, and all trial are bench trials.

The regular courts system handles IP disputes and there are no dedicated “IP Courts”. However, since many of the cases start in requests for preliminary injunctions, it is quite expected which judges will be appointed to sit the cases.

Roughly speaking, the Israeli court system respects IP rights to the extent that it will grant injunctions in most of the cases where rights are registered. However, while attorney fees in Israel are reletively low, so are monatery compensation and damages ruled.

The Israeli Courts System is a 3-fold system:

1) Megistrates Court - This is the court of the lowest rank. IP cases will be filed in this court only rarely, if the plaintiff has no interest in injunctions and only seeks monetary relief.

2) District Court – This is the major court for IP cases in Israel. It handles most of the litigations. The district court of Tel-Aviv handles the largest number of cases. It is entitled to give all kinds of remedies.

3) Supreme Court – Also serves as court of appeal on the decisions of the district court.

The Commissioner of Patents, Trademarks and Desings

The commissioner of patents, trademarks and designs serves as a judicial authority that handles oppositions, requests for cancellations, and other applications concerning the validity of patents, trademarks and designs.

For specific advice regarding litigation matters, please don’t hesitate to contact Mr. Zeev Fisher, at zeev@fwjip.com

The UK Patent Office published a new litigation manual. The manual can be accessed on the UK IPO’s website, here:

http://www.ipo.gov.uk/pro-types/pro-patent/p-law/p-manual/p-manual-litigation.htm

Here, Hon. Justice Kitchin establishes that the test for acknowledging a priority claim is that the person claiming priority must be the same person who filed the priority application or his successor in title in the date of filing the application claiming the priority. Here is the relevant quote:

“In my judgment the effect of Article 4 of the Paris Convention and section 5 of the Act is clear. A person who files a patent application for an invention is afforded the privilege of claiming priority only if he himself filed the earlier application from which priority is claimed or if he is the successor in title to the person who filed that earlier application. If he is neither the person who filed the earlier application nor his successor in title then he is denied the privilege. Moreover, his position is not improved if he subsequently acquires title to the invention. It remains the case that he was not entitled to the privilege when he filed the later application and made his claim. Any other interpretation would introduce uncertainty and the risk of unfairness to third parties. In reaching this conclusion I derive a measure of comfort from the fact that the Board of Appeal of the EPO has adopted the same approach to the interpretation of Article 87 EPC in two cases: J 0019/87 and T 0062/05. “

The case was about an artificial heart valve rendered invalid as it was obvious in light of a few prior art references.

The priority application was a US provisional application.