Alternative Dispute Resolution

ADR logomore ADR

I’ve just been to a most enjoyable, informative and stimulating one day mini-conference on 6 June 2013, on the topic of Alternative Dispute Resolution that was hosted by the Hebrew University, in Bet Mayersdorf, on their Mount Scopus campus. The event was cosponsored by WIPO and the Israel Patent Office.

The conference was organized by Dr Guy Pessach, and kicked off with welcome remarks from Professor Yuval Shany, the Dean of the Law Faculty.

asa kling (cropped)The Commissioner, Assa Kling, then spoke. He rather confusingly kept relating to the Patent Office, which seemed a little unfair after all the effort exerted by his predecessor to change the name of the the Israel Patent Office to Israel Patent Agency. Then again, it makes me feel more comfortable since I sometimes make the same mistake in this blog!

We note that both Professor Shany and Dr Pessach were comfortably informal in shirt sleeves, whereas the Commissioner, Assa Kling, wore a suit and tie. His deputy, Ms Jaqueline Bracha and the third arbitrator at the patent office, Ms Yaara Shoshani Caspi both were black pants-suits. I am not sure if the formal dress adopted by the arbitrators of the patent office was indicative of their elevated statuses, or whether academics on their home ground are generally more comfortable.  In shabby contrast to the senior patent office staff, the two male stajers were looking scruffier than even by my standards, wearing rugby shirts, jeans and three days of stubble, so there doesn’t seem to be a patent office uniform, per se.

I’d never actually met the Deputy Commissioner, Ms Jaqueline Bracha before. I found myself sitting next to her, and when the commissioner, Assa Kling, went up to give his words of welcome, quipped that he was going to speak in Klingon. She giggled. When she later swapped smart phone messages with the Commissioner, realized my indiscretion.

wichard.jpg_1271692375 (2)The first keynote lecture was given by Mr Johannes Christian Wichard, the Deputy Director General of the Global Issues Sector of WIPO. Mr Wichard gave a very interesting overview of WIPO’s mediation and arbitration mechanisms. He wowed the audience with impressive statistics concerning the number of domain name conflicts WIPO manages to resolve, and then spoke in more detail about what, to me, was the more interesting topic of patent dispute resolution by mediation and arbitration, giving real life examples, but with names of parties withheld, and the costs involved. Of course the costs to WIPO and the mediator are NOT the full costs, as generally the parties are represented by legal counsel.  Nevertheless, the talk provided food for thought as an alternative approach to solving conflicts, particularly where the parties are involved in an ongoing relationship, such as where a patent dispute arises between a supplier and the customer.

Dan Or-HofAfter a coffee break, in which food for thought was discussed over danish pastries and a fruit platter, Adv. Dan Or-Hof of PCZL gave a comprehensive review of the Domain Name Dispute Resolution before the organization that administers domain names in Israel. The speed and efficiency of the system seems admirable, with the full procedure taking less than two months. Nevertheless, it appears that ICCOS only hears about 4 cases a year.

I was somewhat surprised that someone from PCZL (Pearl Cohen Zedek Latzer) would advocate alternative dispute resolution. I have a personal dispute with that law office since I was not paid for the work I performed in good faith for their clients during the period I worked there at the beginning of last year. My several and various requests for some sort of arbitration or mediation have been ignored, as have my requests for an explanation of their behaviour. No doubt Mark Cohen – the partner I was working under – and Zeev Pearl have some counter-claims against me, but I don’t know what they are, so cannot address them. Pearl has threatened me not to sue, but doesn’t really leave me much choice. If the Israel Association of Patent Attorneys was more active, perhaps they could arbitrate or mediate in cases like this. As it is, I have no option but to go to court, which will presumably end up more costly for both sides.

The next lecture was given by Adv. Ms Yaara Shoshani-Caspi, a judicial officer of the patent office who spoke about whether mediation or arbitration by the patent office adjudicators could supplement the formal in partes opposition and cancellation procedures. After presenting some background and statistics, she made some very interesting observations and finished with reference to UK Patent Office practice, where mediation and arbitration is more established.

Adv. Shoshani-Caspi preceded here substantive comments with a disclaimer that the views expressed were hers alone, and not representative of the patent office. The conference was conducted in English, and Ms Caspi therefore chose to read her presentation, which she read eloquently and confidently. Nevertheless, the fact that it was a read speech gave it a feeling of it being an official position paper, which perhaps, a more informal slide based presentation would have avoided.  Apart from guest speaker Johannes Christian Wichard, who could have been given the paper to read himself, I think every one else present would have been at least as comfortable listening to the talk in Hebrew.  After the presentation, the commissioner reiterated that the views expressed by Ms Shoshani-Caspi were hers alone and did not reflect patent office policy. This was particularly the case since there was no legal basis for the patent office to meet the parties early on, less formally, to try to determine the actual points of contention and to resolve them more efficiently. We note that he seems less cavalier than his predecessor with regard to making the system more efficient by innovative practices not supported by the regulations.  Hearing the statistics regarding the number of cases the three patent office adjudicators manage each year, I was impressed with their efficiency and workload. I sometimes disagree with the odd decisions, but it is usually a question of nuance.

The fact that Ms Shoshani-Caspi read her talk made it a little more difficult to concentrate, but we note that the audience did seem very attentive. Being easily distracted I noted how much luxurious hair she had, hanging loosely around her face. Whereas she had let her hair down, this contrasted nicely with the distinguishingly balding commissioner who seemed more to be let down by his hair.

I asked Dr Guy Pessach if the lunch was for all participants or just speakers. He said that they were catering for 20, and kindly invited me along. I thus found myself lunching with the opposition, sitting between Commissioner Kling and Ms Shoshani-Caspi, with Deputy Commissioner Jaqueline Bracha and the head of the trademark department Ms Anat Levy sitting opposite.  I would have quite happily paid for my lunch, but leaving Bet Meyersdorf to find a canteen and to find my way back through the rat’s maze of the Mount Scopus campus is daunting. (I did my PhD on the architecturally less interesting but more user friendly Givat Ram campus).  I note that the number of participants in the morning session significantly outnumbered those who returned for the afternoon, and suspect that the catering arrangements contributed to this. The fact that the afternoon session was more copyright and less patent oriented, may, also have resulted in some of the patent attorneys leaving early. Perhaps the solution is to provide a lunch for all participants, for a reasonable fee, which the cost per head in universities and the like, is generally reasonably from my experience organizing similar events, but to provide free tickets to speakers and VIPs?

In the afternoon there were two presentations on collecting societies and alternative dispute resolution.

yorik_ben_david_bThe first speaker,  Mr Yorik Ben David (No relation to my former partner, Jeremy M Ben-David, as far as I know) is the CEO of Israel Copyright Collecting Society, ACUM, who started his presentation by informing us that he’d just flown in from Washington via New York, was jet-lagged, and therefore apologized in advance if he didn’t recognize any of the somewhat familiar faces in the audience. Alas, Poor Yorik, he knew them well…

It seems that AKUM’s collection strategy is to first invite people to pay a reasonable license, then threaten them, then invite them to arbitration and only as a last resort, to sue. About a decade ago whilst I was working for Seligsohn and Gabrieli, I remember that the firm used to sue copyright infringers left, right and center on behalf of the collecting society, and apparently the change of strategy is due to AKUM being recognized as a monopoly, following their bullying tactics against the Israeli radio station Galei Zahal.

Mr Ben David also described AKUM’s internal arbitration mechanism for dealing with cases of alleged plagiarism, seen as coming under copyright law, and arbitrated by retired Supreme Court Justice Theodore Ohr. He noted that the fee structure used was based on that of the courts – which seemed a little like plagiarism to this blogger…

Reuven BeharAdv. Reuven Behar, senior partner of Fischer, Behar, Chen Weil Orion & Co. who had apparently represented Cable provider HOT against AKUM, gave an alternative perspective.  He noted that there was a proliferation of rights collecting societies, some of whom had broken away from others, but all wanted a bigger piece of the pie. He was critical that royalty calculations were generally made on the basis of income rather than profit. We were impressed with Adv. Behar’s presentation, which was fluent and interesting. We were further impressed that, despite him being an attorney, and in flagrant copyright infringement, Adv. Behar was dressed identically to Mr Ben-David, wearing a blue button down shirt over a white teeshirt. It seems that in the interest of comfortableness,  Adv. Behar is willing to forgo the comfort blanket of black suit and tie that other attorneys seem to require as a badge of their profession.

Dr Orna RabinowichDr Orna Rabinovich-Einy of Haifa University gave the final lecture. Dr Pessach introduced her as Israel’s leading expert on Alternative Dispute Resolution. Her presentation was very fluent, very animated and very informative. She spoke a lot with her hands and didn’t use slides. The talk was peppered with references to various ADR theorists and models. I didn’t have the background to follow everything she was saying, at the pace she was saying it, and suspect that that was true of others in the audience as well. I was convinced that she was indeed at least one of the leading experts and a competent and experienced lecturer. I would have preferred ideas to be developed a little more. Particularly as the talk was after lunch and to the end of a fairly heavy program.

Alternative Dispute Resolution is becoming more popular. The IP Watchdog has just posted an article on the topic. See here 

guy pessachDr Pessach is to be congratulated for organizing a thought provoking and stimulating conference. It is a shame that the turnout was a little low, and we suspect that poor publicity and generally late announcing of the event, was a contributory factor to this. There have also been three other conferences in as many weeks, Bar-Ilan and Colb (which I missed as I was in China but which apparently was also poorly attended), Shaarei Mishpat + patent office on design law, and Kim Lindy’s best practices, which was aimed mostly at in-house counsel, who one would have thought would be an ideal audience for today’s proceedings. Maybe cosponsoring with LES, AIPPI or IPR would be a good way to advertise the event a little more widely?

Categories: Academia, ADR, ALTERNATIVE DISPUTE RESOLUTION, infringement, Intellectual Property, Israel Patent Agency, Israel Patent Office, Israel Related, Licensing, Patents, plagiarism, Uncategorized, WIPO

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