ISRAEL Law and Practice Contributed by: Eran Bareket, Reinhold Cohn Group
Nevertheless, the plaintiff need not prove any evidence at the stage of filing the statement of claims but will typically undertake private fact- finding and gathering of evidence before bring- ing a legal action, because the statement of claims must set forth in some detail the facts that support the plaintiff’s cause of action. The defendant must respond with a defence statement within 60 days of being served with the statement of claims. The defence statement must set forth all the material facts underlying the defences raised by the defendant. The plain- tiff is entitled, but not obliged, to respond to the defence statement with a response statement within 14 days. The case then proceeds to a pre-trial hearing, which is intended for delineating issues in dis- pute between the parties and in which the par- ties are encouraged to resolve discovery and interrogatory controversies. If not settled, the case proceeds to trial. Before the pre-trial, the parties must arrange an internal meeting (with- out the involvement of a judicial or a quasi-judi- cial person such as a judge, arbitrator or media- tor), which is intended for the same purposes described above (ie, delineating the issues in dispute, resolving discovery and interrogatory controversies and considering alternative pro- ceedings such as mediation and arbitration). Before the first pre-trial, the parties are request- ed to report to the court regarding their previous efforts made at this internal meeting. The judge prescribes the schedule for the sub- mission of evidence, orally or by way of writ- ten affidavits and expert opinions. The evidence (and summations – see below) may not include factual allegations not substantially raised in the party’s pleading, unless a party seeks and
obtains leave to amend its pleading. The grant of such leave is discretionary. There may be another oral hearing before the judge to ensure that all the evidence has been submitted. Thereafter, a trial hearing is held where the witnesses and experts are cross- examined. Afterwards, the parties will exchange summations orally and the judge should hand down the judgment within 90 days (although this requirement is not always adhered to). 2.12 Representative or Collective Action There are no collective actions (such as class actions) for intellectual property proceedings. However, a patentee is exposed to class actions if, for example, it violated antitrust laws, as in the Sanofi case (see 2.13 Restrictions on Assertion of an Intellectual Property Right ). As a general rule, if a rights owner files suit against more than one defendant regarding infringement of the same rights and more or less the same factual background, the suits will be unified (and vice versa if several plaintiffs file suits against the same rights owner). 2.13 Restrictions on Assertion of an Intellectual Property Right Compulsory Licences The provisions of the Israeli Patents Act were amended in order to accord with the Agree- ment on Trade-Related Aspects of Intellectual Property Rights (TRIPS) regarding compulsory licences. Nevertheless, these provisions have little significance in practice and have not been in use since the early 1990s. These provisions hold that, if the patentee or the exclusive licence owner is misusing its “monopoly power”, the Registrar may grant a compulsory licence to exploit the patent to third
265 CHAMBERS.COM
Powered by FlippingBook