ISRAEL Law and Practice Contributed by: David Gilat and Matan Kovacs, Gilat, Bareket & Co, Reinhold Cohn Group
5.3 Discretion to Award Injunctive Relief (Final or Preliminary) The Patents Law provides that a prevailing plain - tiff is entitled – as a matter of right – to both an injunction as well as to damages. The language of the law does not allow the court discretion to award damages in lieu of an injunction. Nonethe - less, injunctive relief is a remedy in equity, and the court would have the discretion to refrain from issuing an injunction in rare cases. 5.4 Damages Calculation of Damages A prevailing plaintiff is entitled to damages, with Section 183(b) of the Patents Law providing that in awarding compensation, the court shall take into consideration: • the direct damages caused to the plaintiff; • the extent of the infringement; • the profits derived by the infringer from the act of infringement; and • the reasonable royalties which the infringer would have had to pay in consideration for a licence. The plaintiff may opt between damages due to loss of profit and the profit made by the defend - ant amounting to unjust enrichment. Adjudica - tion of reasonable royalties may be warranted where the plaintiff’s business model is to issue licences at arm’s length. The Patents Law further empowers the court to order the infringer to provide accounts on the basis of which calculation of damage may be effected. If such an order is made, it is possi - ble that a supplementary judgment would be issued, in which only the issue of the damages is addressed. Otherwise, the claim for damages would be heard as part of the main claim.
prevailing party, the earlier of which will start the clock on the 60-day term for lodging an appeal. A final injunctive relief will not require the pre - vailing party to deposit a bond, as there is no longer a chance that the claim will ultimately be rejected, and there can be no cause of action in tort over the wrongful issuance of the injunction. Enforcing Execution If a party against which an injunction was issued does not abide by that injunction, the prevailing party may seek to compel the losing party to do so by filing a motion under the Contempt of Court Ordinance. Under this ordinance, a party failing to comply with a duly issued court order is subject to a monetary fine and, in extreme cases, to imprisonment for as long as the breach of the order is taking place. Staying Execution A party against which a final injunctive relief was issued may seek – alongside the filing of an appeal – a stay of execution. If the appeal is yet to be filed, the court of first instance will hear the motion for a stay; if the appeal has been filed, then the court of appeal will hear it. In order to prevail in such a motion, the appli - cant must demonstrate to the court that it has a good chance of winning the appeal and that, if the injunction enters into effect, either it would be impossible (or very difficult) to go back to the previous state of affairs, or the applicant would suffer irreparable injury. A court allowing a stay of execution may make such stay subject to the satisfaction of which - ever conditions it deems fit, such as the deposit of a security or the placing of a limitation on the price charged for the now-enjoined product/ process.
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