Public Interest as Grounds for Accelerated Examination in Israel

Eruv

In Israel, patent applications are provisionally categorized into technology areas by the Israel Patent Office on receipt. Applications are then examined in turn by the examiners assigned to the specific technology area.

There are various ways to have an Application examined out-of-turn, by requesting accelerated examination with due cause, if the application is environmentally friendly (green classification), if the applicant is old or ill, or by using the PPH mechanism where there is a corresponding application abroad that has already been examined.

Section 19a(a)5 provides public interest as grounds for accelerating patent examination in Israel. In a ruling concerning Application 216870 Cimas LTD, the patent office ruled that examining in turn was essentially in the public interest, and that to examine something out of turn, requires extraordinary justification.

IL 231173 is titled “A Halachic and technological Eruv”, and accelerated examination was requested on the grounds that it contributed to the quality of life of the Halachically Observant population in Israel.

The Commissioner of Patents, Assa Kling refused the request, since he did not think that this was what the legislature intended when they allowed Public Interest as grounds for Accelerated Examination. He went on to rule that “Public Interest” implies a specific public interest, and this wasn’t shown here. The application is queued for regular examination.

COMMENTS

Jewish Law prohibits Jews from carrying in the public domain on Shabbat (the Sabbath).  An Eruv is a Halachic device developed by the Rabbis for reclassifying public domain as communal domain, thereby allowing carrying therein. Essentially, an area is enclosed by a symbolic boundary, often comprising poles connected by string and this makes it semi-private or communal.

Approx. 25% of the Knesset is Shabbat Observant and this is reflected by the percentage of observant members of the Israeli public. Carrying on Shabbat affects this sector of the population once a week. An Eruv makes a significant difference to the quality fo life of this significant minority of the population. Unlike a lot of religious initiatives, developments and legislation that adversely affects the quality of life of non-Jews and secularists, it is difficult to see how this type of development can adversely affect anyone, at least not in Israel. (In London, there were assimilated Jews who complained that the Eruv made them feel that they lived in a ghetto. Possibly this argument holds true abroad, but Israel is a Jewish state and anyone having a problem with religious neighbors is simply xenophobic and anti-Semitic).

I find it difficult to imagine that over-riding public interest should be limited to things that affect a higher percentage of the population than 25%, more of the time than one full day a week.  It could be that applicant,  Shira Attia, who appears to be unrepresented, failed to make her case properly. Nevertheless, despite whether the Commissioner himself has a problem with carrying on Shabbat, he should be aware that a lot of Israelis do.

5 Responses to Public Interest as Grounds for Accelerated Examination in Israel

  1. Benny says:

    A number of errors I do see here.
    First, your statistics are way off the mark. 20% of the Israeli public are not even Jewish, let alone observant. Of those who are ultra-observant, a significant proportion live in an area where an Eruv is already in place. A not inconsiderable portion of the remainder do not strictly observe the requirement of the Eruv. So those affected are a far smaller proportion than the 25% you suggested.

    Second, there is no impediment to implementing an invention after submitting a patent application and before grant. I don’t see that there is much scope for financial gain in such an invention, so there is little to be lost.

    Third, if the invention is indeed in accordance with all the requirements of Jewish law, then adequate prior art to reject the application can probably be found in the books of scholarly Jewish teachings. If no such prior art is found , the implementation will probably be rejected as not in accordance with Jewish law by latter-day Rabbis.

    When consulting a Rabbi on the compatibility of such an invention with Halachic law, does the Rabbi have to sign an NDA ?

    • Benny,

      We cannot surmise whether or not the idea is novel or inventive. That issue will be addressed by Examiners after Examination starts.
      I am aware that the invention itself won’t make a difference to 20% of the public. That is true of all inventions. The point about an Eruv is that it is supposed to promote community. It is a communal technology by its nature.
      Arguably, it takes something out fo the public domain and creates an artificial community…

  2. Sharon says:

    the decision as rendered is a missed opportunity to pour some substance into the letter of the law and lay down some ground rules / criteria / guidelines as to what may constitute a legitimate public interest justifying accelartion – for example, it appears that some sort of a “causal link” requirement should be imposed between said interest and the accelartion as a means to an end, are there alternatives less offensive to the rest of the applicants queued in line and whether the benefit exceeds such harm, in the spirit of the constitutional proportionality tests. shame.

  3. Erez Gur says:

    There may be great merit in Ms. Attia’s invention, but there is no reason presented for expedited examination.

    Since she can practice her invention immediately with or without patent, I think the Commissioner made the right decision.

    • Erez,

      Being able to practice an invention is irrelevant to whether expedited examination is required or not. Patents are not and never have been licenses to use. They block others. One can reasonably argue that there is never public interest to accelerate, but where Patent Law allows examination out of turn, it seems that this should be considered on grounds of usefulness of idea to common good without regard of whether it needs a patent to be practiced.

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