In IL 187147 to James Howared, the Applicant missed the 30 month deadline and filed in the 31st month. Israel is a 30 month regime. The Applicant, represented by Reinhold Cohen (RCIP) appealed the decision and the Adjudicator of Patents, Noach Shmulovich Shalev, ruled that unintentionally missing the deadline is not enough; the Applicant is required to show Due Care.
The case is very similar to IL 175104 (one of my clients), where I cited the same case law, but also tried to show why the mistake by the Korean Associate was understandable, and that the applicant’s rights should not be limited in consequence of a foreign attorney’s oversight. In the present ruling, there doesn’t appear to be anything new. Shmulovich Shalev is consistent in claiming that due care requires the associate to look up the law and not simply assume 31 months.
He has reiterated earlier decisions by his predecessor Israel Axelrod (now a judge in Ber Sheva):
- Assuming that the Israel Patent Office is closed on Sunday is considered a reasonable (though wrong) assumption.
- Additionally, if, as sometimes happens, the applicant / foreign counsel, did check but got confused between Iceland (IS) and Israel (IL) in a table of national phase entry deadlines, that would be construed as due care.
These cases of missed deadlines are unfortunate. If the national phase entry deadline is missed, the PCT publication renders the invention known and thus unpatentable. Other regimes take a more lenient approach, ruling intent, rather than due care. Indeed, a former Head of the PCT Department of WIPO told me that he thought Israel had one of the strictest interpretations of any member state. That as may be, at least the patent office is consistent.