According to the Mekor Rishon newspaper, Adv. Asa Kling has been selected as the next Israel Commissioner of Patents and Trademarks. Kling has an LL.B, from Tel Aviv University from 1997; and a B.Sc. in Aerospace Engineering from the Technion, Israel Institute of Technology. Kling is currently a partner of Gilat Bareket, the legal side of the Reinhold Cohn Group, where, according to their website, he handles various aspects of intellectual property law, antitrust law, commercial law, company law and international transactions.
He has litigation experience relating to patents, copyright and trademarks and cross-border intellectual property enforcement. Assuming the Minister of Justice Yaakov Neeman confirms the appointment, we wish Adv. Kling success in his new position.
We note with approval that Adv. Kling has both legal and engineering qualifications, with IP experience as both a patent attorney and an attorney-at-law. Interestingly, Kling’s Patent Attorney license, No. 280, is only from 2006. It is odd to find myself licensed as a patent attorney for longer than the incoming Commissioner.
Then again, Kling does have the three years post licensing experience to train budding patent attorneys, and there is no legal requirement for a commissioner to be a patent attorney at all. Kling does, however, have the 10 years post licensing experience required for a district court judge, which is the equivalent position.
Some may consider it not ideal for an Israel Commissioner of Patents and Trademarks to have been a partner in the largest IP Group. If Kling disqualifies himself from handling cases where Reinhold Cohn is a party, he may find himself unable to rule on a large number of cases. Since the Deputy Commissioner and other adjudicators are subservient to him, there is a problem even if he disqualifies himself. There is also a danger of Kling taking a strong line against RCIP clients so as to appear balanced.
In my opinion, because of the possibility of appeal to the courts, the problem is not overly serious in practice. Since decisions are published, third parties such as me can freely criticize what we consider to be misinterpretations and poor decisions. Indeed, way back when then Acting Commissioner Yisrael Axelrod found in favor of RCIP’s clients when interpreting the law regarding pharmaceutical patent term extensions in a ruling where only RCIP’s clients were involved, the Knesset amended the Law to make his interpretation untenable.
We hope that Kling, if his appointment is affirmed, will either not patronize any IP events organized by firms in the private sector, will patronize them all or will publish guidelines for participation of patent office staff. Dr Noam had a strong policy of not attending events organized by IP firms and also prevented heads of departments from actively participating. However, on occasion, he did take an active part in events sponsored by the RCIP group, such as a reception held in honor of the visiting Chinese Commissioner of Patents and Trademarks. This Orwellian equality was a little grating, not least because Noam had sold his practice to RCIP before taking up his appointment as Commissioner.
In the small and close knit Israel IP world, most practitioners have come through one of two or three established firms. It is difficult to imagine that anyone with IP experience and knowledge, who hasn’t come through the patent office, won’t have worked for one or other large IP firm. It would be more problematic if someone from Israel industry, say, an in-house IP counsel of Teva, Orbotech or Comverse was appointed commissioner. We do, however, note that the make-up of the committee who considered candidates for the job has not been published. This does not seem a desirable state of affairs for open government.