ISRAEL Law and Practice Contributed by: Eran Bareket, Reinhold Cohn Group
deems it just to exempt the applicant from this requirement. On termination or expiration of a temporary rem- edy order, the defendant (respondent) may file, within 90 days, an application to order the plain- tiff to compensate the defendant for damages it suffered from the order, and the court will rule thereon. In this context, regard must be paid to the decision in the matter of Unipharm v Sanofi (see 2.13 Restrictions on Assertion of an Intel- lectual Property Right ) where the court ordered that a company that manufactured generic drugs, and which opposed a patent application that was subsequently withdrawn by the patent applicant, may be entitled to disgorge part of the patent applicant’s profits where it was found that the patent application was prosecuted improp- erly in an attempt to extend the patent protec- tion for a pharmaceutical about to become off- patent. 2.8 Protection for Potential Opponents Declaration of Non-Infringement A third party can ask the court for a declaration that their exploitation of the invention disclosed in the patent does not constitute an infringement. The patentee and the exclusive right owner are the respondent in this application. The applicant must give the patentee full details of the product or process they wish to use. It should be noted that in these proceedings the applicant cannot argue that the patent is invalid. Furthermore, the grant or refusal to grant the declaration of non- infringement shall not be decisive on the ques- tion of the patent’s validity. 2.9 Special Limitation Provisions There are no special statutory limitation provi- sions regarding intellectual property matters, and these matters are subject to the general seven-year limitation period prescribed by law.
The seven-year limitation period on infringe- ment actions commences on the date when the cause of action accrued. Regarding the question of when the cause of action “arises,” it has been established in case law that the limitation period begins on the date when all the facts necessary to prove the claim have been established. An additional condition for the commencement of the limitation period is the existence of “a right of action” meaning a real possibility to file a claim and obtain the requested relief. Thus, it is required that the preliminary conditions for the plaintiff’s substantive and procedural right and actual ability to approach the court and obtain the requested relief are also met. In recent years, case law has addressed this condition of a genuine “right of action”, view- ing the absence thereof as suspending the start of the limitation period even after the cause of action has arisen. Accordingly, to determine whether the statute of limitations applies, it is first necessary to exam- ine the alleged causes of action and the facts establishing them. The limitation period “race” is suspended if: • the plaintiff did not initiate the lawsuit because the defendant deceived it (including consciously hiding a fact (or facts) constitut- ing the cause of action); or • the defendant exerted its influence against the plaintiff, threatened it or took advantage of its weakness. If the plaintiff was unaware of the fact constitut- ing the cause of action, for reasons not depend- ent on it, and this could not have been prevented even by taking reasonable care, the limitation
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