Arutz 7’s take on the 2013 Report of the Israel Patent Office

July 28, 2014

Arutz 7

In an earlier post, I summarized the 2013 Patent Office Report.

It is interesting to see what happens when journalists who are non-patent professionals analyze and report on the same data.

Arutz 7 is a nationalist news web-site.  It used to be a popular pirate radio station, but was eventually closed down in an en-banc Supreme Court Ruling, which gave the impression that the cutlass welding settlers were making Palestinian’s walk the plank. None of the eminent judges saw fit to refer to freedom of speech or to the classic Kol HaAm decision. Funnily enough, the same politicians who appealed to the Supreme Court against the pirates, nominated Voice of Peace pirate Abu Natan for a Nobel Peace Prize. It is a funny world, but I digress.

Anyway, Arutz 7 have published a write-up of the 2013 report. It may be found here.

What I find fascinating is that they see the main story that can be culled from the data is that the Israel patent office manages to get 99.7% of PCT filings to Geneva in under 4 weeks, where the majority of those held back have security related issues. To me, this statistic indicates that the PCT department works efficiently, but this is probably a factor of over-staffing as much as anything else, since to become an International Search Authority, the Israel Patent Office needed to reach 100 examiners and some of these pad out the PCT Department.

According to Adv. Emi Plimor, the Secretary General of the Justice Ministry, “this reflects the technological level, creativity and innovation of Israeli inventors”.

I am pleased that the Israel Patent Office is so efficient at forwarding applications, but I am not sure how significant it actually is. When it took them a couple of months, there were no repercussions that I am aware of. That said, the on-line payment innovation that saves having to go to the Post Office and then submit the payment physically is a great improvement from the perspective of the practitioner.


Opposition Withdrawn, But Commissioner Continues Anyway

July 14, 2014

spraying device

Israel Patent 204070 to Reckit and Colman titled “SPRAYING DEVICE AND METHOD OF USING SAME” relates to a spray apparatus with a safety feature to check that it is not refilled by a third party. It was allowed, and published for opposition purposes on 28 February 2013. On 28 May 2013, Sano Bromium Factory LTD.  filed an opposition, claiming that all the claims were non-patentable due to novelty or obviousness considerations in light of WO 2005/113420 and WO 2005/009325. Furthermore, Sano-Bromium argued that the claims were poorly worded and unclear and lacked support from the specification.

Sano-Bromium subsequently withdrew their opposition on 24 December 2013, and the opposition file was closed. However, under Section 34 of the Patent Law, the Deputy Commissioner put herself in the shoes of the opposer and compared the claims with the two citations and reasoned that they were, indeed, unpatentable.

The Deputy Commissioner published a closely argued comparison between the claims and the two citations and provisionally refused the patent, giving the applicant 30 days to respond.

COMMENT

The purpose of Section 34 is to prevent patents issuing when they shouldn’t. The Deputy Commissioner is correct to analyze the grounds for opposition on their merits and to consider whether the opposition should continue even if the opposer loses interest.


When a mark under Opposition is assigned to a third party

July 10, 2014

puss in boots

Israel Trademark Number 244831 is for the word mark “PAMA” and covers Clothing and shoes for women, grils and grown up grils only; all included in class 25. The mark is owned by Abedel Razzak Ebido, a resident of Hebron.

We assume that grils are girls, and grown up grils are maidens or young ladies.

PUMA SE applied to have the mark canceled. Abedel Razzak Ebido meanwhile assigned the mark to another family member and forgot to inform the opposers of this. Attempts to argue that he forgot, and that the assignment was in the family so didn’t matter were rejected. PUMA were awarded 1500 Shekels in legal costs.

COMMENT

Since the District Court has argued that Palestinian youth are entitled to their rip-off brands, allowing four stripe Adidas trainers, it is important that brand owners fight mark like this.


When an Israel Patent Lapses Due to Lack of Funds

July 10, 2014

resuscitate

In an appeal to restore lapsed patent number 177522 to Yad Conena LTD., the director Shmuel Savyon claimed that the patent had lapsed due to lack of financial resources. this wasn’t the first time that the patent had lapsed, but on a previous occasion, it was restored after then Deputy Commissioner Noah Shalev Smylovich was convinced that the patent had become abandoned unintentionally.

Section 60 of the Israel Patent Law allows a lapsed patent to be reinstated if the patent lapsed in reasonable circumstances against the patentee’s wishes, and if, on learning that it had become abandoned, the patentee takes immediate steps to rectify the situation.

Deputy Commissioner Jacqueline Bracha considered that in this case, the patentee was aware that the patent had lapsed and had made a conscious decision to allow the asset to lapse due to lack of funds. The patentee didn’t suddenly learn that the patent had lapsed, but rather was aware of the situation. When circumstances changed, he tried to revive the case. This is beyond the scope of Section 60.

COMMENT

I think the Deputy Commissioner is correct in her interpretation of the Law. However, I note that other jurisdictions are more flexible, and though expensive, it is sometimes possible to revive abandoned patents under such circumstances elsewhere. Thankfully most of my clients are in good financial shape, but I have a couple of cases in Europe and the US where the applicants have ran out of funds but the situation has improved. In general, I do whatever I can to help such clients, but only after receipt of anticipated costs up front.

 


What Happens When One Party of a Jointly Owned Application is Not Interested in Continuing with Examination?

July 7, 2014

Three parties: CNRS, University of Pierre and Marie Curie, and the Centre Etudes et de Valorisation des Algues, Ceva filed a national phase of FR2011/051384 into Israel as IL 224677.

On three separate occasions, the Centre Etudes et de Valorisation des Algues, Ceva indicated a lack of interest in the European and Israeli applications being examined. In the circumstances, the other two parties applied to continue prosecuting under Section 25, with their request supported by a statement from Ludovic Hamon the VP of CNRS.

RULING

In cases of multiple owners, Section 25 allows for a jointly owned patent application to be prosecuted in accordance with the desires of only some of the parties, but the Commissioner will only abandon an application or patent at the request of all of the parties.

Section 25 has not been clarified by the case law, and the accompanying explanation to the Law from prior to its legislation, does not relate to this section.

The Deputy Commissioner suggests that the purpose of the Law is so that a pending application may be moved forwards without agreement of all parties, so long as they are all kept in the picture.

In this case, despite the disagreement on ownership, two of the applicants are willing to the prosecution of the application without the involvement of the third party.

Since the Commissioner cannot see how the third party can lose from this, she ruled that examination should continue, with the third party being informed of developments.

Whereas all applicants may submit for an application to be abandoned, there is apparently no mechanism for one applicant of many to disengage himself from the examination process. Consequently, the Deputy Commissioner suggests that she should act as per the Law of Chattels. However, without clear indication from the third party that they are relinquishing all rights in the application she is unwilling to do more than simply to follow advice of the other parties.

Ruling, Jacqueline Bracha, 30 June 2014

COMMENT

This type of case could get very messy. Any of the joint owners can license the patent if allowed. Where parties are jointly owned, one should try to have clear contractual obligations in place. In this sort of case, ideally the interested parties should try to buy out the rights of the disinterested party.


Intellectual Property at the Workplace: Theoretical and Comparative Perspectives, by Dr Shlomit Yanisky-Ravid, the Book Launch

July 4, 2014

shlomit

This is a report of the  book launch of Dr Shlomit Yanisky-Ravid’s opus “Intellectual Property at the Workplace: Theoretical and Comparative Perspectives, by Dr Shlomit Yanitzky-Ravid”. קניין רוחני בעסודה: תיאוריה, מעשה ומשפט השווה – ד”ר שולמית יניצקי-רביד. I have a peer-reviewed book review waiting publication, and can only blog that once it has publishes, at least on-line, so this article focuses on the event, not the book.

THE LUNCH LAUNCH

Dr Miriam Biton once accused me of only blogging about refreshments at conferences. This is not true. I try to cover events for IP enthusiasts who forgot to attend, and do try to cover the less substantive aspects of events as well. Nevertheless, I had worked through lunch and the reception started at 4:30, so I was grateful that it included savoury sandwiches. They weren’t very exciting or tasty, but were filling, and I didn’t get home until gone 10 PM, so it was appreciated. Most were short on filling, but one with avocado wasn’t, and I had changed into a white shirt for the occasion. Ah well.

There were perhaps 30 people at the reception, and about 100 at the event. This number included students. In an email exchange with me Dr Shlomit Yanisky-Ravid claimed 80 registered participants, so perhaps we should accept this figure without quibbling.

WORDS OF WELCOME

The evening opened with words of welcome from the Dean of the Law faculty, Professor Amichai Cohen, who noted how active Dr Shlomit Yanisky-Ravid is very busy in a wide range of activities including organizing events, student trips abroad, lecturing, publishing, directing the Center for Comparative Law and other work for the ONO Academic College.

For some reason, the compere, Dr Rivi Cohen, who otherwise did a fine job, introduced the Commissioner of Patents and Trademarks, as Adv. Assa Kling. I suppose a law academic considers that being an attorney-at-law is a major achievement, but there are 50,000 of them in Israel, and only one Commissioner of Patents at a time. The job description of Commissioner of Patents is approximately on a par with being a District Court Judge. As the commissioner had recently published a ruling relating to Service Inventions that had related extensively to the book, but ruled that even the author admitted that the current state of the Law was not in accordance with her views, I was eager to hear what he had to say. Diplomatically, he spoke about the collaboration between the Patent Office and WIPO that Shlomit was involved with, and didn’t relate much to the book other than noting that it was in the Patent Office library. He also noted that there was an unprecedented 8 cases before the committee for employee compensation, so the book was timely and important.

Judge Elisheva Barak Ussoskin, the Emeritus Labour Court Deputy President, read a speech that fairly summed up the book. She then apologized for not staying, but her grandchildren had ballet, which she felt was more important. For a words of praise presentation, this was pardonable, but subsequent speakers in the first panel, made up of academics and colleagues of Shlomit from ONO, also spoke and then walked out.

THE ACADEMIC PANEL

Former Accountant General, Professor Yaron Zlikha, raised some interested points concerning non-patentable inventions by civil servants, and argued that giving a large percentage royalty to civil servants who were inventors of patents discriminated against their colleagues who may have made lucrative innovations for the government that are not patentable. He gave, as an example, an action he had initiated that had generated two billion shekels for the communal pot, arguing that giving inventors 35% royalties and not giving him even 3.5 parts per million, seemed a little unfair. Professor Shlomo Noy, Head of the Health Services Department at ONO then spoke.  He countered some of Dr Zlikha’s comments. Both senior ONO lecturers spoke and walked out. Not taking questions from the floor is one thing, but not staying for the break to take questions individually, or to hear other panelists comments, seemed to me to be bad manners. If the moderator had forced them to react to each other’s comments, a meaningful debate might have ensued.  (I felt that the moderator, who mentioned Shlomit’s important chapter on gender, was mostly qualified by virtue of being a female academic). 

Professor Orly Lovel gave a perspective based on corporate law. She had a lot to say and limited time, so gabbled somewhat. Her last point was valid, though hardly original. She noted that the labour Laws in California which allowed workers to change companies and take knowledge with them had generated Silicon Valley, whereas the Massachusetts State Law had prevented a similar phenomenon from growing up around Boston, despite the top universities there. I Accept that this is good evidence that pro-worker legislation is good for the technological progress. However,  I am not sure that it is good for companies or inventors. In other words, the question of how this redistributes wealth was not addressed.

THE PROFESSIONAL PANEL

After the break, there was a panel chaired by Advocate and Notary Calia Klein, the head of the labour law group at Pearl Cohen. Having experienced first hand of how her firm treats employees, it was interesting to discover that they have an Employment Law group, and are thus presumably aware that there are laws in this area. There  were some solid but not particularly inspiring comments by Adv. Yossi Markovitch and by Adv. David Gilat. David noted that the employer-employee relationship is part of Patent Law, not Labour Law and felt that this was appropriate.

Adv. Eran Bareket made some interesting and, for me, thought provoking comments about forum shopping regarding service inventions, noting that the book hadn’t related to this issue. He pointed out that one can file suit in the labour courts, the District Court, with the Commissioner of Patents in opposing a patent as being the true inventor or owner, or with the committee for compensation for service inventions. He gave examples of where cases had gone to each forum and considered the state of affairs problematic, as the rulings would perhaps be influenced more by the forum, than by the issues.

Mr Amir Raveh, an inventor and investor in start-ups acknowledged no legal training and feigned not to have understood the terminology used by the other panelists. He stated that whereas a few years ago,start-ups were expected to have patent applications, nowadays, this is no longer the case and the issue when selling companies is human resources. He did not seem able to explain how one can sell human resources though. Employees can move companies, and non-compete clauses are rarely enforceable. He seemed to be involved in the currently trendy smartphone App field. I wonder how one can prevent competitors from under-cutting without patents?

The evening concluded with Dr Yanisky-Ravid thanking just about everyone, receiving a bouquet of flowers from a student groupie, and lots of photos of her posing with speakers and family members who had turned up in force to show their support.


Opposition to IL 138831 “Gaze Actuated Information System”

July 3, 2014

heads up display

Rafael LTD. filed Israel Patent Application Number 138831 for a “Gaze Actuated Information System” in 2000 which was allowed in July 2007 and Elbit filed an opposition within the prescribed three months.

Asaf Ashkenazi, a director and VP MOP of Elbit and Mr Naftali Maimon, a marketing development worker at Rafael filed sworn statements. Mr Asaf Ashkenazi attempted to file an additional statement in response to that of Mr Naftali Maimon, but Adjudicator of  IP, Ms Yaara Shoshani Caspi threw out statements regarding the lack of utility and lack of industrial applicability that were considered as beyond the original Statement of Case.

In 2010, then Deputy Commissioner Noah Shalev-Smylovits heard the witnesses and their cross-examinations. The Commissioner Assa Kling decided to rule on the evidence submitted and the transcripts of the hearing.

Apparently the system provides audible warnings to the pilot, follows the pilot’s eye movements and simplifies the visual display. The system results in lighter helmets and simpler heads-up displays than those previously known.

The patent was sought on tracking the pilot’s eyes rather than in directing the pilot’s gaze. The claim set included three independent claims for the system and method and 15 dependent ones.

Claims 1 and 14 are as follows:

1. A method for providing a pilot with information associated with at least one region of a field of view visible to the pilot from within a cockpit without requiring a visual display, the method comprising steps of:

(i)                 determining an eye gaze direction relative to a given frame of reference for at least one eye of the pilot by:

(a)   employing a helmet-mounted system to derive direction information related to a relative eye gaze direction for at least one eye of the pilot relative to a helmet worn by the pilot,

(b)   deriving position information related to a position of said helmet within a cockpit, and

(c)    processing said direction information and said position information to derive said eye gaze direction relative to a frame of reference associate with said cockpit;

(ii)               determining a reference direction relative to said given frame of reference;

(iii)             comparing said eye gaze direction with said reference direction; and

(iv)             if said eye gaze direction and said reference direction are equal to within a given degree of accuracy, generating audio output audible to the pilot and indicative of information associated with said reference direction.

 

14. A method for providing to a pilot confirmation that a weapon system is locked-on to a visible target without use of a visual display, the method comprising the steps of:

(i)                 determining an eye gaze direction relative to a given frame of reference for at least one eye of the pilot;

(ii)               determining a target direction representing the direction relative to said given frame of reference from the weapon system to the target to which the weapon system is locked on;

(iii)             comparing said eye gaze direction with said target direction; and

(iv)             if said eye gaze direction and said target direction are equal to within a given degree of accuracy, generating a predefined audible signal to confirm that the weapon system is locked-on to a target at which the pilot is currently gazing.

Elbit claimed lack of novelty / inventive step and opposed the patent under Sections 4 and 5 of the Israel Patent Law. They cited the following prior art:

[1]U.S. Patent No. 5,583,795  “Apparatus for measuring eye gaze and fixation duration, and method therefor”.

[2] U.S. Patent No. 4,196,474  “Information Display for air traffic Control”.

[3] U.S. Patent No. 4,935,885 “Method and apparatus for determining weight and center of gravity of a vehicle“.

[4] U.S. Patent No. 5,602,543 “Detection system for use in an aircraft”.

[5] U.S. Patent No. 5,978,715 “Apparatus and method for aircraft display and control”.

[6] U.S. Patent No. 5,647,016 “Man-machine interface in aerospace craft that produces a localized sound in response to the direction of a target relative to the facial direction of a crew “.

[7] U.S. Patent No. 3,617,015 מיום 2.11.1971, שכותרתו: “Head-coupled missile-aiming device”.

[8] U.S. Patent No. 5,790,085 “Portable interactive heads-up weapons terminal”.

[9] U.S. Patent No. 5,296,854 “Helicopter virtual image display system incorporating structural outlines”.

[10] U.S. Patent No. 5,931,874 “Universal electrical interface between an aircraft and an associated store providing an n-screen command menu”.

[11] U.S. Patent No. 4,288,049  “Remote targeting system for guided missiles”.

[12] U.S. Patent No. 6,455,828 “Method for remote-controlled combat of near-surface targets”.

[13] U.S. Patent No. 4,449,787  “Night vision imaging system adapted for helmet mounting”.

[14] U.S. Patent No. 4,287,410  “Double purkinje eye tracker”.

[15] U.S. Patent No. 5,726,671  “Helmet/head mounted projector system”.

[16] U.S. Patent No. 4,852,988  “Visor and camera providing a parallax-free field-of-view image for a head-mounted eye movement measuring  system”.

[17] U.S. Patent No. 4,634,348 “Head and/or eye tracked optically blended display system”.

[18] U.S. Patent No. 4,028,725  “High resolution vision system”.

[19] U.S. Patent No. 4,034,401 “observer identification of a target  or other point of interest in a viewing field”.

[20] : “Rash et al, Design issues for Helmet-Mounted Display Systems for Rotary-Wing Aviation, USAARL Report No. 98-32 Fort Rucker, AL: U.S. Army Aerodynamical Research Laboratory, July, 1998″.

[21] Kopp, Helmet Mounted Sights & Displays, Air Power International, Vol. 3 No.1, July 1998, pp. 54-57.

[22] “Wenzel and Foster, Virtual Reality: Principles and Applications, Piscataway, NJ: The Institute of Electrical and Electronics Engineers, 1993.

[23] “Begault et al, Augmented TCAS Advisories Using a 3-D Audio Guidance System, Proceedings of the Ninth International Symposium on Aviation Psychology the Ohio State University, Columbus Ohio, 1997.”

The claims for lack of inventive step were based on single publications or their combination with any one of several others. In other words, Elbit was claiming lack of inventive step n the basis of 1 or 2 publications, but Rafael would have to relate to various combinations and permutations to overcome the objection.

Ruling

In oppositions, the onus is on the patentee to prove patentability.

The issues raised included whether tracking a head position and tracking eye movement were identical, and whether improvements could be considered engineering improvements or inventive ones. The main citations were examined in length. Eventually claim 1 was upheld, claim 14 and its dependencies were rejected, and applicant was ordered to correct a typo in claim 6 which related to 50° instead of 5°.

 


Public Interest as Grounds for Accelerated Examination in Israel

June 29, 2014

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.


Amending a patent application under opposition

June 25, 2014

muzzle flash

This ruling by the Commissioner of Patents clarifies what types of amendments to claims may be allowed during oppositions and post grant, and in which cases the patentee has to provide justification for amendment. Unfortunately, in applying the rules, the commissioner got it wrong and allowed an amendment that causes embodiments not previously within the scope of protection to henceforth be protected.

Rafael Advanced Warfare Systems LTD opposed an attempt to amend the description of patent application no. IL 188066 titled “System and Method for Identifying Shooting”, which was filed in December 2007 by Optigo LTD and Elta Systems LTD,  transferred totally to Elta in December 2011, and published for oppositions at the end of July 2012.

On 25 October 2012 Rafael filed an opposition, submitting a statement of case in February 2013. Instead of responding, in August 2013, Elta applied to amend the application. Rafael opposed this as well, filing a further statement of case, and in January 2014, Elta filed their statement of case. Under Regulation 102, the main opposition is suspended until the allowability of the amendment is determined. The parties forwent the right to a hearing and the ruling on the amendment was given based on the written submissions.

In brief, the application claims identifying shooting from the Infra Red flash from gun muzzles.

The amendments included:

  • substituting the term locating and detecting into the claims, where the original claim related to detecting only
  • the term PDA (Photo Detector Array) was replaced with an imager comprising a non cryogenically cooled PDA
  • The term sensing was replaced with imaging
  • The term Near Infra Red NIR was replaced with Short Wave Infra Red SWIR
  • In addition, claims relating to the activity of the sensor and the information collected was amended

The marked up amended claims are reproduced below:

1. 2. A method for use in detecting and locating on of a muzzle flash event, the method comprising sensing electromagnetic radiation by an imager comprising a non cryogenically cooled Photo Detector Array (PDA) sensitive in at least a portion of the NIR and SWIR spectrum, thereby imaging the sensed electromagnetic radiation, wherein said electromagnetic radiation propagating towards the PDA undergoes filtering for selectively passing towards the PDA the electromagnetic radiation of one or more spectral ranges of relatively low transmission in atmosphere –of said at least portion of the NIR and SWIR spectrum, said sensing imaging having an integration time shorter than 10-2 s.

2. 1. A method for use in detection detecting and locating of a muzzle flash event, , the method comprising sensing electromagnetic radiation by an imager comprising a non cryogenically cooled Photo Detector Array (PDA) sensitive in at least a portion of the NIR and SWIR spectrum, thereby imaging the sensed electromagnetic radiation, wherein said electromagnetic radiation propagating towards the PDA undergoes filtering for selectively passing towards the PDA the electromagnetic radiation of one or more spectral ranges of relatively low transmission in atmosphere for said at least portion of the NIR and SWIR spectrum; and wherein said sensing imaging having an integration time shorter than a duration of the muzzle flash event; the method comprising applying staged processing to pixel signals of said PDA for consecutively reestimating the occurrence of said muzzle flash event while reducing the amount of data to be processed at each stage, and wherein said staged processing comprises a stage of parallel in-pixel processing.

3. The method of any one of preceding Claims 2, wherein said parallel in-pixel processing comprising analyzing the time dependent signals from each pixel independently of other pixelssensing is at least in part performed within the NIR spectrum.

4. The method of any one of preceding Claims, wherein said imager comprises at least 10,000 pixelssensing is at least in part performed within the SWIR spectrum.

24. A device for use in detection and location of a muzzle flash event, the device comprising an imager comprising a non cryogenically cooled Photo Detector Array (PDA), sensitive in at least a portion of the NIR and SWIR spectrum, and a filter of electromagnetic radiation configured and operable for selectively passing therethrough spectral bands corresponding to relatively low transmission of the electromagnetic radiation in atmosphere for said at least a portion of the NIR and SWIR spectrum, said sensing PDA having an integration time shorter than 10-2 s.

25. A device for use in detection and location of a muzzle flash event, the device comprising an imager comprising a non cryogenically cooled Photo Detector Array (PDA), sensitive in at least a portion of the NIR and SWIR spectrum, and a filter of electromagnetic radiation configured and operable for selectively passing therethrough spectral bands corresponding to relatively low transmission of the electromagnetic radiation in atmosphere for said at least a portion of the NIR and SWIR spectrum, the PDA having an integration time shorter than a duration of the muzzle flash event; the device includes a processing system adapted for applying staged processing to pixel signals of said PDA for consecutively reestimating the occurrence of said muzzle flash event while reducing the amount of data to be processed at each stage, and wherein said staged processing comprises a stage of parallel in-pixel processing.

26. The device of Claim 2526 or 27, wherein said parallel in-pixel processing comprising analyzing the time dependent signal from each pixel independently of other pixels the PDA at least partially being sensitive within the NIR spectrum.

27. The device of any one of Claims 26 24 to 2826, the PDA at least partially being sensitive within the SWIR spectrumwherein said imager comprises at least 10,000 pixels.

Following these amendments, applicant requested replacing sensing with imaging in claims 15, 16, 17, 20, 21, 22 and 23, and deleting the words sensing being  in claims 43-36 with appropriate grammatical amendments.

In claims 5-11, 18-19, 28-34, 38-42 the applicant requested adding the word wherein with appropriate grammatical amendments.

Applicant requested cancelling claims 5, 19, 30 and 44.

Claims of the parties

Elta claimed that the amendments were supported by the specification and that none of the amendments widened the scope of protection and thus fulfilled both Sections 65 and 66 of the Law.

Rafael countered that the amendments widen the claim-set, change the essence of the invention and claim elements not is the original application.

Rafael argued that “detecting and locating” is wider than merely detecting in that the invention now enables working out where the flash comes from. Therefore the amendment should not be allowed. Similarly, imaging includes sensing, but provides additional functionality and enables obtaining results not previously protected. Substituting SWIR for NIR enables using a sensor that does not work in the NIR part of the spectrum. Furthermore, the proposed amendments to claims 3, 4, 26 and 27 are substantial enough to effectively amount to new claims.

Elta responded that nothing claimed extends beyond the scope of the original specification. SInce the opposer did not provide evidence supporting his allegations, they should be thrown out under Regulation 102c, and the opposer should be considered as accepting the amendments.

The opposer considers that having to detect locate is narrower than merely detecting and should be allowed.slocating is supported on page 13 lines 17-21, page 53 lines 20-22. Similarly, “an imager comprising a non-cryogenically cooled PDA” is narrower than merely a  PDA, since it has to be an imager. Support is found on Page 10 line 6, page 7 lines 20-23 and 28-29. In general, the very sensing is wider than imaging, as imaging requires sensing, but also forming a picture. In general, adding additional stages to a process is inherently narrowing. Thus any amendments that narrow the scope of protection should be allowed.

The Ruling

This ruling was issued by the Commissioner, Asa Kling.

Opposers are not required to submit evidence where the issue revolves around an internal logic. The mere failure to submit additional evidence cannot be taken as abandoning the opposition. The proposed reading of the regulations was thus rejected.

Citing Section 29 of the Latent Law, post acceptance, the allowable amendments to claims are those allowable post-grant. i.e. amendments allowable under Sections 65 and 66.Such amendments have to be supported by specification and cannot be a widening in the scope of the protection requested. In addition, Regulation 95a allows post allowance amendments only on paying the requisite fee and stating the purpose of the amendment (so that the commissioner can ascertain that the amendment is indeed a narrowing of the scope of protection).

Citing then deputy commissioner Axelrod in IL 101537 Unipharm vs Merck, 30/4/2003 Section 21b, the applicant has to provide explanations to persuade the examiner that the amendments should be allowed. This was upheld by the Supreme Court in 11194/04 Polyvid polystyrene foam vs. Eli Givati et al. Essentially, according to the Commissioner, he has no choice but to allow amendments that correct a mistake in the claims and claim that which should have been claimed originally, if doing so does not widen the protection, but the onus is on applicant to show that this is indeed the case. The question is really whether after the amendment, the claims can catch something that would otherwise not be considered infringing.

As to locating, since detecting and locating is narrower than merely detecting, it was allowed. Similarly, a choice of a specific  type of imager is narrower than any detector and was allowed.

The Commissioner considered SWIR as relating to the range 0.7 microns to 1 microns  and NIR as relating to the range 1 micron to 3 microns. Since the range is smaller, he allowed this amendment. (I believe that this amendment is wrong as I will explain below).

As to claims 2 and 25, these also narrow the claim scope, but their intent was not stated and is not self-evident. Consequently, these amendments were rejected, as were the corresponding amendments to dependent claims 3 and 26. Claims 4 and 27 that replaced wavelengths with pixel densities were considered new claims and were rejected.

Any amendment not obviously narrowing, was not allowed, since the onus was on applicant to explain why additional or seriously amended claims should be allowed.

Adding words like ‘wherein’ and correcting grammatical errors was allowed.

In conclusion, the amendments to claims 1, 5-24, and 28-52 were allowed, as was deleting original claims 5, 19, 30 and 44.  The new clauses in claims 2 and 25 for ‘the method comprising’ and ‘the device includes’ were rejected. The amendments to claims 3, 4, 26 ans 27 were likewise rejected.

Costs were to be awarded at the end of the main opposition

COMMENTS

I am not familiar with the term SWIR. Wikipedia considers SWIR as being below 1.4 micron and NIR as being from 1-3 microns. see here.

As defined by Commissioner Kling, the SWIR range is below that of the NIR range. The amendment protects a system using a sensor of wavelengths below 1 micron, whereas prior to the amendment it would be an acceptable work-around. Clearly, this is a widening of the scope of protection. If, for example, visible light was claimed and an amendment specified green light, or part of the spectrum from red to green, this would be a claim narrowing, since the new range is totally within the older range. That is not the case, at least not according to the Commissioner’s own definition. If he sees this, I’d expect him to correct the ruling. If not, there are grounds to appeal since the Commissioner is correct legally, but wrong scientifically. For those not with me on this, try drawing Venn diagrams.

 

 

 

 


Israel IP 2013, a Quantitive Overview

June 17, 2014

 Israel Patent Report 2013

The Israel Patent Office has published its summary of 2013. Their focus is on their efficiency. I have culled and am reporting the information that I believe is of more value to IP practitioners. My interpretative comments are in italics.

To enjoy the graphs and the graphics – a hot air balloon lifting a paper car, and no-doubt signifying hot air, recycling, creativity, and fen-shui, or something, readers can access the original here. I think that this literary digest is more user-friendly. Each to his own.

PATENTS 

The number of patent applications in 2013 was 6184 which is down 9% from 6793 in 2012, and is the lowest number since 2003. Approximately 600 of these applications are Divisional Applications and 6 are patents-of-addition.

The Israel Patent Office notes that since 2012 there has been a 40% discount for local applicants having a turnover of less than 10 million Shekels, but fails to note that there was a massive jump in filing fees of about 40% back then. My take – the Shekel is very strong so Israel is a more expensive destination than some others.

The number of first filings in Israel is 889, which is also a record low, less than at any time in the past decade. It is possible, however, that more Israeli start-ups are first filing in the US, either as Provisionals or regular US applications since the US fees have been going down, and the dollar is weak.

The pendency period prior to examination starting has been dropping steadily and is now 28 months on average, with biotech being especially fast. This may be explained by the increase in Examiners due to the Israel Patent Office becoming an International Search Authority of the PCT, which required the IPO to employ at least 100 examiners.

Second office actions typically issue 5-6 months after a response is filed, which is similar to last year and rather better than in the past. 

On average, examination takes 2 to 27 months, with Biotech taking rather longer on average – 37 months.

The Israel Patent Office has issued 3698 patents in this period, which is more than for any other solar calendar year in the past decade except 2011. 

The number of PCT applications filed in Israel was 1199 which is up from 1113 in 2012, but still below 2011 levels.

658 out these (55%) filing in Israel, have taken advantage of the relatively low International Search Fees and elected Israel as the Search and Examination Authority. 321 selected the EPO and 220 selected the USPTO. 

The report claims that the total number of applications filed by Israelis has remained constant, but more are filed in Israel as opposed to in Geneva. I don’t thing this is true, but do accept that the service provided in Israel is at International levels, with 91% filing electronically. 

What is clear is that in both absolute numbers of originating countries and by Receiving Office, Israel ranks 17, and clearly has a smaller population than any of the countries that have more filings.

Israel is the second fastest receiving office at getting applications to WIPO, with 99.3 applications getting there in les than four weeks, only lagging behind Denmark. This is a fairly useless statistic for the Israeli inventor, but no doubt gratifying to Dr Michael Bart and his team. I have been presently surprised by the quality of Israel generated International Search Reports and have recommended them to clients. In the past the USPTO often failed to provide the International Search Report (ISR) in a timely manner, but they have got better and also better at searching, even occasionally finding relevant art in non-US patent literature. The US fees have dropped somewhat and they may be more popular.

Israel is proud of the speed of PCT examinations, with 90% being examined within 3 months, ahead of the US and EPO. Furthermore, they blame security related examinations being forwarded to the Ministry of Defence for clearance, for the remaining 10% which take 4-5 months to issue.

There is an interesting of table of where incoming patent applications originate, that shows both Paris Convention filings and PCT national phase entries. This is of value when planning overseas marketing strategy.

Lists of the more prolific local and international filers into Israel had few surprises.

Some 20% of patents are issuing by modified examination under Section 17c, relying on a foreign issued patent from one of a list of examining authorities. This number has been dropping steadily since 2010, and is below 2008 levels. 

Some 130 applications were examined out-of-turn by one or other acceleration mechanism. This is higher than in previous years and no doubt reflects the various fast lanes of the Patent Prosecuting Highway, since only 18 applications were considered ‘green’ and fast-tracked thereby 

Of the 3887 applications allowed, 32 were opposed. 27 oppositions were dropped by the opposer and 14 resulted in the applicant dropping the case. Of the four patent oppositions that went full term to decisions, 2 applications were allowed to issue and two were rejected, with the ruled on oppositions taking an average of just over 4 years to be resolved.

Five applications to cancel issued patents were filed with the patent office. 21 final rejections were appealed. 9 requests for patent term extensions were filed and 4 were granted. 41 lapsed patent requests were considered and there are 8 pending decisions for employee inventor compensation. 

In absolute terms, there are fewer applications filed in Israel than in South Africa, New Zealand or Malaysia. In terms of patents per gross national product, Israel lags behind Korea, Japan, USA and most of Europe. 

When normalized for the size of population, Israel remains surprisingly attractive. Israel remains a must-file country for pharmaceuticals, biotechnology, organic fine chemistry (whatever that means) and medical technology. It holds its own in computing. Interestingly, Israel is also noticeable as originating PCT applications for medical technology and pharma, so Israel’s innovative companies are no less significant than the Israeli generic suppliers.

DESIGNS

The number of design applications was 1353 which is the lowest for a decade. 492 of these come from Israel. Of the 861 foreign cases, the US is the most prolific filer, followed by Brazil (104 applications, mostly Stern Jewelry), Europe, Korea, Japan and China.

TRDEMARKS

There were 9580 trademark applications into Israel in 2013. This number is less than 2006 to 2008 but higher than the other years of the last decade. Part of the drop is due to the introduction of multi-class applications, since there is an overall growth in the number of classes being filed in. Multi-class filings and the fact that of the 9580 applications, some 4930 were Madrid Protocol applications, implies less work and income for Israel trademark attorneys in basic filing. There are, however, some 176,978 issued trademarks in force, that need renewing. (Costa Rica has 183,226, and I suspect a better mark to attorney ratio).

As of the end of 2013, there were 20 competing mark cases, 98 trademark oppositions, 14 single party appeals and 40 cancellation or registry correction cases. Overall, the Israel Patent Authority has managed to resolve more of these than have been initiated.

Based on WIPO statistics, Israel ranks 46 in terms of trademark originators, behind Algeria, Kazakhstan, Bosnia and Herzegovina and Azerbaijan. Hoewever, Israel is only 19th in terms of popularity as a destination under Madrid.


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