Filing Date of National Phase Entry into Israel ‘Corrected’ After Cross-Examination of Courier

passoverDeadline

The 30 month filing deadline for the national phase entry of PCT/CU2011/000006 to GRUPO EMPRESARIAL DE PRODUCCIONES BIOFARMACEUTICAS Y QUIMICAS into Israel was 27 March 2011. The deadline fell during the patent office closure for Pessach, from 25 March 2013 to 1 April 2013. Deadlines falling into this period are extended to the first working day thereafter, which is 2 April 2013.

The agent for the applicant (Seligsohn, Gabrieli & Co.) claim to have filed the application on the 2 April 2013. However, the date stamp received on the filing certificate was 4 April 2013.

Seligsohn, Gabrieli & Co. appealed the date, claiming that it was obviously a patent office mistake. Dr Michael Bart, the Head of the PCT Division discussed the procedure for handling incoming mail with Yohanan Mizrachi, the head of the incoming applications division, and came to the conclusion that since the box was emptied out several times a day, the mistake was not possible and so he refused to allow the application as timely filed. (This state of affairs would lead to the PCT application being cited as prior art against the national phase entry, resulting in it being rejected as lacking novelty).

Adv. Sharona Lahav of Seligsohn, Gabrieli & Co.  requested a hearing and the taxi driver that hand-delivered the applications, Daniel Bosgalo submitted an affidavit.

Bosgalo claimed not to have made any deliveries on 3rd or 4th of April, and the next delivery after the 2nd was on the 7th. Both Adv. Sharona Lahav and MR Bosgalo concurred that their records showed no deliveries on 3rd or 4th of April. Ms Lahav suggested that due to the amount of material filed after the week’s holiday, perhaps the applications were mistakenly sent to the trademark department or something, and only found their way to the patent department a couple of days later.

On reviewing the evidence, Ms Bracha ruled that the weight of evidence did indicate that the material was delivered to the Patent Office on 2 April 2013, but only stamped and sorted a couple of days later. She over-ruled Dr Bart’s decision and allowed the application as filed on 2 April 2013, and therefore as timely filed.

 

 

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