ISRAEL Law and Practice Contributed by: Eran Bareket, Reinhold Cohn Group
2.10 Mechanisms to Obtain Evidence and Information Discovery, inspection and written interrogatories proceedings are available in Israel, albeit in a less extensive manner than in, for example, the USA. The exchange of requests for discovery, inspec- tion and written interrogatories occurs soon after the conclusion of the exchange of pleadings. An unsatisfied party may file a motion to compel the opposite side, as part of a list of requests submitted before the first pre-trial. The parties may also request a leave for appeal with regard to several issues, such as discovery docu- ments, inspection of documents and the claim of privilege. The entire process may take several months, sometimes more than a year. There are no depositions. Moreover, there is no pre-complaint discovery in Israel. Interim orders such as Anton Piller-type search- and-seizure orders and receivership orders may also assist a party in the collection and preserva- tion of evidence. Discovery is not available against non-parties. However, a third party may be summoned to produce particular documents under subpoena duces tecum issued by the court on a party’s application. Disclosure from non-parties must be limited to specific documents. 2.11 Initial Pleading Standards A lawsuit is initiated by filing a statement of claims, which starts the exchange of pleadings. The statement of claims must set forth the facts that, if subsequently proven, will establish the plaintiff’s cause of action, and thus requires sub- stantially more detail than a complaint filed in, for example, the USA.
period begins upon the plaintiff learning of the relevant fact. Case law shows an accepted position that in patent infringement each act of infringement gives rise to a new claim; thus, a claim seek- ing injunction is not time-barred by the statute of limitation even when the infringement com- menced more than seven years before the claim was brought. However, damages cannot be recovered for a period in excess of the sev- en-year limitation period. An exception to this rule is that an employee’s claim for payment of remuneration for a service invention owned by an employer becomes time-barred seven years after the date of filing of the patent applica- tion for the invention. Aside from the issue of the “right of action”, a recent case (Unipharm v Glaxo) involved a generic company seeking an order for accounting and monetary relief, alleg- ing that the respondents engaged in sham pro- ceedings — the patent application and infringe- ment claim against the appellant. Through these actions, the respondents were unjustly enriched at the expense of generic companies. This claim was filed following the conclusion of the oppo- sition proceedings before the Patent Registrar. The appellant contended that Glaxo withheld material information from the Patent Office — the existence of a former British application — and that the appellant’s disclosure of this information led to the patent application’s rejec- tion. The court noted that this case was similar to the Sanofi case (as referenced in 2.7 Interim Injunctions ). Ultimately, the claim was summar- ily dismissed due to the statute of limitations. It was determined that all conditions, including the “right of action” were met, since the appellant’s right of action did not depend on the Patent Reg- istrar’s decision in the opposition to the patent, and thus, there were no grounds for extending the limitation period.
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