According to an article on Ynet, the Internet site of Yedioth Aharonot, Israel’s most widely read, daily newspaper, Dr. Meir Noam, Israel Commissioner of Patents has been harshly criticized by the Chairman of the Knesset Constitution, Law and Justice Committee, MK David Rotem, for:
- Failing to print the basic details of new patent filings
- Nevertheless, collecting the publication fee from all applicants over four years, amounting to some NIS 3,000,000
The background to the criticism is that four years ago Dr. Noam decided to publish the data regarding new applications on the Internet rather than in the Register of Patents. However, acording to Rotem, the Law requires them to be printed, and publication on the Internet is insufficient.
Section 16 of the Israel Patent Law requires publication of the applicant, title of the invention, filing date and priority claim as soon as possible after filing. The publication is to be in the Rishumot or formal register.
Section 16 also makes it clear that the Justice Ministry and the Knesset Constitution, Law and Justice Committee are responsible for defining how this should be accomplished. The relevant regulation, Regulation 32, also refers to publicizing or publishing in the Rishumot. It doesn’t seem to mention printing per se. Section 166 which defines the register and the sections that define the official fees don’t relate to printing, nor does the list of fees. Therefore I am not certain whether publishing in a searchable database on the patent office website is publishing.
It should be noted that the printed register took a long time to prepare and publish. The data is more easily searched and more quickly available over the Internet than in the printed register, although to some extent, reviewing all new applications each month is easier in a printed register. From an ecological perspective, the move to the Internet is welcome. I’ve reviewed the Patent Law and Regulations and can’t see a basis for Rotem’s decision that there should be a printed publication. If I’ve missed it, and the report on Ynet seems to imply that there is such a requirement, then MK David Rotem may be correct that this is ultra vires, and the change should probably have been made by the Minister of Justice or the Knesset, not by Dr. Noam who lacks the authority.
The question goes to the heart of an ongoing battle between the formalists who believe that the Law should be interpreted fairly literally, and the pragmatic-moral camp, led by the former Israel Supreme Court Chief Justice Aharon Barak. They don’t generally let the little things like the words of the law get in the way of their version of the spirit of the Law.
Former Supreme Court Judge Chaim Cohen said of the Reshumot:
Publication in the Reshumot has a special value in that what is publicised there – and only there – is considered as published in practice: even though the man of the street never reads the rishumot, he cannot claim (in his defence) that he was unaware of what was published there, or at least creates the assumption of knowledge since the mass media will bring to the public that of public interest…
…; it creates the legal fiction that despite knowing that the citizen doesn’t read the Reshumot, it is as if he has read, remembers and knows everything publicized there.
Free translation of Haim Cohen, The Mishpat, Bialik Publishing House 1991.
The Knesset certainly hasn’t given IP legislation the priority that practitioners like myself, think it deserves. The question is: To what extent does this mean that judges and commissioners should creatively interpret the Law to the extent that they are ignoring what it says?
It should be noted that a few months ago Dr. Noam decided to interpret the archaic design law to interpret the bar to registration of being ”sold or published locally” to include described on the Internet on a foreign Patent Office website. I argued that this Commissioner of Patents decision published in an official Circular was ultra vires and required Knesset legislation. I stand by that position. See New Israel Design Regulations which reports on Commissioner Circular M.N. 64.
Civil servants in the Justice Ministry have tried to reach a compromise. Meanwhile, a much-needed amendment to the Law has been delayed until both sides can come to a mutual understanding.
See the complete Y-Net (in Hebrew) here: http://www.ynet.co.il/articles/0,7340,L-3971804,00.html