A Korean Patent Agent client of mine, mistakenly believing that Israel operated a 31 month regime (as does several jurisdictions, including Europe and quite a lot of the English speaking world) instructed me to file an Israel National Phase Entry, nearly 31 months after the earliest priority date.
I explained to him that the 30 month deadline was missed, but nevertheless advised him to attempt a late filing, since the applicant had timely requested him to organize the filing.
Under Section 164 of the Israel Patent Law, the IPO has the authority to allow late filing where a reasonable excuse for missing deadlines is given, and there are a wealth of Israel Patent Office Precedents where the IPO has shown leniency in similar situations where foreign counsel has caused deadlines to be missed.
These precedents, all ruled on by then Assistant Commissioner, Israel Axelrod, include:
- A decision concerning IL 153854 (not published) where the US Counsel had made the same mistake, thinking that Israel had adopted the 31 month regime. In that file, the Applicant never showed interest in filing the application until the 30 month deadline had passed.
- A published decision concerning IL 131311, where a British lawyer representing the client missed a deadline by a day, believing that the Israel Patent Office was closed on Sundays, allowing him to file on Monday. (That file also included a second account of the reasons behind the missed deadline based on the CEO of applicant being unreachable as he was in spiritual isolation in some mountaintop ashram).
- Finally, in IL123822 , the Israel Patent Office allowed a 50 day late filing, where the US attorney representing the applicant woke up to the fact that he had never gotten a response from his usual Israel associates and was advised by a different firm of Israel Patent Attorneys to file anyway, and the application was allowed.
In this case, the Israel Patent Office rejected the petition for late filing and then Deputy Commissioner of Patents and IP Arbitrator Noach Shalev Shmulovich chose to uphold the strict position and rejecteded an Appeal which I filed through my firm, Factor – Patent Attorneys.
Notably, in his ruling, Shmulovich does not actually relate to any of these precedents but simply choses to examine the responsibilities of legal counsel, citing court rulings that really relate to the responsibility of Israeli licensed practitioners before the Israel Courts.
From discussion with other IP practitioners, it appears that the general feeling is that the Israel Patent Office is tightening standards with regards to procedure.