ISRAEL Law and Practice Contributed by: David Gilat and Matan Kovacs, Gilat, Bareket & Co, Reinhold Cohn Group
1.15 Defences and Exceptions to Patent Infringement A defendant may claim in defence that its activi - ties do not fall within the scope of the claims, and/or that the patent is invalid under any grounds on which the grant of a patent may be opposed, and/or that its activities are permitted for other reasons as explained below. Invalidity Any grounds, on which the grant of a patent may be opposed, shall be a good defence in an action for infringement. Under Israeli law, a patent-eligible invention is defined as “an invention, whether a product or a process in any field of technology, which is new and useful, can be used industrially and involves an inventive step”. In addition, the Patents Law provides that the patent’s disclosure must ena - ble the person skilled in the art to make and use the invention to the full scope of the claim and that the claims must be unambiguous and rea - sonably arise from the included disclosure. Defendants in patent infringement proceedings are entitled to challenge the patent’s compliance with any of the above requirements as part of their defence in court proceedings, and they may also file a motion for revocation of the pat - ent at the Patent Office. In this connection defences such as the so- called Gillette defence or Formstein defence are applicable. Exclusions From Patentability The Patents Law excludes from patentability a “method of therapeutic treatment of the human body”. The “method of treatment” exclusion is narrowly interpreted, with only a method, as such, excluded, and products or composi -
and the party by which it was retained, are privi - leged. Where the questions in dispute relate to different fields, it is possible that a party will provide evi - dence from several expert witnesses to address each field separately. While experts are retained by the parties, they are expected to assist the court in its fact-finding mission rather than serve as advocates for the cause of the party which had retained them. The court may appoint its own expert in addition to the parties’ experts. The parties may agree that the opinion of the court expert will replace the opinions of the parties’ experts. The parties are entitled to cross-examine the court expert. The court is also empowered to appoint an assessor to advise the court on technical mat - ters. 1.13 Use of Experiments During both infringement and validity proceed - ings, it is possible to submit experimental results to show infringement or validity, eg, in support of claims of inventive step, lack of enablement, or lack of utility. Such results are filed with a sup - porting affidavit attesting to the conditions of the Under Israeli law, parties to a claim (including an infringement claim) must disclose all relevant documents in their possession or control to the opposing party and may also be required to answer interrogatories. Copies of non-privileged documents need to be provided to the other par - ty for inspection, in full or redacted form (eg, in case they contain trade secrets). experiments and the results. 1.14 Discovery/Disclosure
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