ISRAEL Law and Practice Contributed by: David Gilat and Matan Kovacs, Gilat, Bareket & Co, Reinhold Cohn Group
The plaintiff-applicant would normally file such motion alongside the filing of the case-in-chief, or beforehand, in situations of urgency, on the condition that the case-in-chief would be filed up to seven days following the issuance of a deci - sion in the motion for preliminary injunction. In urgent matters, motion for a temporary injunc - tion may be filed ex parte, and a decision may be issued without hearing the respondent, within a day or two at most, according to which a hearing would be set as soon as possible, and, in any case, within 14 days. If the court is disinclined to issue a temporary injunction ex parte, it will schedule a hearing as soon as possible, usu - ally immediately after the defendant-respondent filed its response to the motion for interlocutory remedies. Under the Civil Procedure Regula - tions (CPR), the hearing will take one day and will include oral summations. The court will then issue its decision immediately after the hearing and, in any case, no later than 14 days following the hearing. Considerations in Granting Preliminary Injunctions A court with which a motion for a preliminary injunction has been filed must be convinced that the matter is urgent and will first consid - er whether the plaintiff-applicant has shown a prima facie case for infringement. While the defendant-respondent may argue non-infringe - ment, they will not be able to challenge validity at that stage unless invalidity of the alleged 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-applicant 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 learning of the need to do so) as well as good faith (namely, whether the plaintiff-appli - cant had acted in an equitable manner and dis - closed 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 defend - ant-respondent has exploited – or is immediately about to exploit – the claimed invention, with such exploitation being defined as either “pro - duction, 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. 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 plaintiff-applicant must serve it on the defendant-respondent 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-respondent. In most cases, the court will set short deadlines to file a response to
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