ISRAEL Law and Practice Contributed by: David Gilat and Jacob Kasulin, Gilat, Bareket & Co, Reinhold Cohn Group
Effecting Service of Motions for a Preliminary Injunction If a motion for a preliminary injunction was filed ex parte, and an interim injunction was issued, the plain ‑ tiff-applicant must serve it on the defendant-respond ‑ ent immediately and, in any case, no later than three days from the day on which it was issued. Usually, the defendant-respondent will be instructed to file a response prior to the hearing taking place. If no order was issued, or if the motion for a preliminary injunction was filed inter partes, the plaintiff-applicant must immediately serve it on the defendant-respond ‑ ent. In most cases, the court will set short deadlines to file a response to the motion, and, if no such deadline is provided, the defendant-respondent will have 20 days to file a response. Both motion and response must be supported by an affidavit or affidavits detailing all those facts alleged by the parties. 1.4 Structure of Main Proceedings on Infringement/Validity A defendant in an infringement claim may – in addition to arguing non-infringement – raise validity arguments in defence. This will not automatically lead to the pro ‑ ceedings’ bifurcation: usually, both infringement and validity are heard concurrently, though the court has the discretion to instruct otherwise. A defendant may also file a motion for the revocation of the patent with the Patent Office. In such case, the court hearing the infringement claim will decide which instances will hear the issue of validity – the Patent Office or the court itself – and the Patent Office will not hear the revocation motion unless authorised to do so by the court. Where the defendant instituted the revocation proceedings before the plaintiff’s fil ‑ ing of the action with the court, the Patent Office will proceed with the hearing of the revocation, unless the court instructs otherwise. Since opposition proceed ‑ ings take place before grant, and revocation proceed ‑ ings only after grant, the two proceedings cannot run concurrently. Opposition proceedings therefore do not prevent a party from later initiating revocation pro ‑ ceedings once the patent is granted.
patent – at a prima facie level – is abundantly clear and could be established without an in-depth review of the evidence. In addition, the plaintiff-applicant must show that the balance of convenience tilts in its favour; namely, that the injury that would be caused to the plaintiff-appli ‑ cant by non-issuance is more severe than the injury the defendant-respondent would suffer as a result of the issuance of the injunction. Finally, the court will weigh considerations such as laches (namely, whether the plaintiff-applicant acted expeditiously enough to protect its rights upon learn ‑ ing of the need to do so) as well as good faith (namely, whether the plaintiff-applicant had acted in an equita ‑ ble manner and disclosed all pertinent facts). Prerequisites to Filing a Motion for a Preliminary Injunction A claim for patent infringement and a motion for a preliminary injunction can only be filed with respect to a granted patent, and the plaintiff-applicant must be able to show that the defendant-respondent has exploited – or is immediately about to exploit – the claimed invention, with such exploitation being defined as either “production, use, offer for sale, sale, or import for purposes of one of the said acts”. Quia timet reliefs are available, provided that a substantial danger of infringement is shown. In life sciences and pharmaceutical cases, Israeli courts require concrete acts amounting to infringe ‑ ment or an imminent threat of infringement. A Mar ‑ keting Authorisation Application (MAA) alone is insuf ‑ ficient to justify a preliminary injunction, as the filing of an MAA does not constitute “exploitation” under the Patents Law. However, additional steps indicat ‑ ing imminent commercialisation – such as preparing distribution channels, or participating in tenders – may support a quia timet injunction. Biosimilar and gener ‑ ic cases typically require it to be shown that launch preparations have progressed beyond the regulatory stage.
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