ISRAEL Law and Practice Contributed by: Eran Bareket, Reinhold Cohn Group
favour of the losing party, or in providing for an award to the state treasury. According to Section 96(a) and 96(b) of the Civil Procedure Regulations, the application for an interlocutory injunction shall be accompanied by the applicant’s personal undertaking to com- pensate the person against whom the order is directed for any damage caused to them by the interlocutory injunction, if the action ceases or the order expires for any other reason. As far as attorneys’ fees are concerned, the courts usually award attorneys’ fees (without extensive factual inquiry), which are significantly lower than the actual attorneys’ fees incurred. The prevailing party is also entitled to reimburse- ment of all reasonable out-of-pocket expenses. Court fees are generally viewed as a reasonably incurred cost and are reimbursed by the losing defendant in full, though the court has discre- tion to refuse this reimbursement, in part, where it finds that the amount initially claimed (and on the basis of which court fees were paid) were unduly high. Costs appearing in the court docket (such as payments ordered by the court to witnesses for their lost time, which are relatively low) are reimbursed as a matter of right. Reimbursement of other costs, such as expert fees, travel and accommodation costs, translation costs, photo- copies, couriers and the like require submission of an application, proving the costs in a detailed manner, and the costs are then scrutinised to ensure their reasonableness as a condition for reimbursement. ILPTO The practice before the ILPTO in opposition and revocation actions is different. Following judg-
ment, the prevailing party is entitled to submit an application that details, on an itemised basis, not only out-of-pocket costs but also attorneys’ fees paid. All items are scrutinised, and prac- tice shows that the amount of attorneys’ fees reimbursed is substantially higher than in district court litigation. Accordingly, in district court infringement liti- gation, the recovery may be well below 15%. However, in proceedings before the ILPTO, the recovery may be 50% or more and legal fee awards may be as high as hundreds of thou- sands of US dollars. 6.3 Types of Remedies According to the Commercial Wrongs Act, a successful plaintiff in a trade secret infringement case may be entitled to injunction and damages, including statutory damages of up to ILS100,000 per infringement (approximately USD27,838). 6.4 Injunctions Pending Appeal If the patent was found to be valid and later infringed, at first instance, the common practice is that an injunction is granted and the default rule is that execution is not stayed. 7. Appeal 7.1 Special Provisions for Intellectual Property Proceedings There are no special provisions concerning the appellate procedure for intellectual property rights proceedings. 7.2 Type of Review The appellate courts typically refrain from inter- fering with findings of fact made by the trial court. The court sitting in appeal over the deci- sions of the Patent Office will typically defer to
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