When a patent application is allowed in Israel, it publishes for Opposition purposes. Third parties have a three month window to file oppositions. But what happens if the last day of the three month period is a weekend or holiday?
Unipharm filed two Oppositions to pharmaceutical applications that published in the October journal on 29 October 2015.
One application was IL 199215 to Janssen Sciences, Ireland UC titled “POLYMORPHIC FORMS OF A MACROCYCLIC INHIBITOR OF HCV”. The other case was IL 181734 to Bayer Healthcare LLC, titled “POLYMORPH I OF SORAFENIB TOSYLATE, PHARMACEUTICAL COMPOSITIONS COMPRISING IT AND ITS USE IN THE MANUFACTURE OF MEDICAMENTS”. In both instances, Mr Zeebulun Tomer , the CEO of Unipharm filed the Oppositions himself without bothering with legal representation. In the second case against Bayer, Teva Pharmaceuticals also filed an Opposition (via Shin Horovitz).
The three month period for oppositions ended on 29 January 2016, but this was a Friday. On the first working day, i.e. Sunday 31 January, 2016 the two oppositions were filed.
Bayer and Janssen, both represented by Gilat Bareket and Partners, requested that the Oppositions be rejected as they were not filed in a timely manner, since the three month period had passed.
Now the deadline of three months as stated in Section 30 is not extendable. The Applicant argued that Friday is a working day and despite Section 10(c) of the Law of Interpretation, argued that there was no reason not to have filed the objection on the Friday.
The Applicant (unrepresented!) cited patent office circular 003/2011 to the effect that the Israel Patent Office is open Sunday to Thursday, from 8:30 to 13:30 . The regulations state that the patent office is not open the public on Fridays.
Theoretically, the Applicant could have filed on line on the Friday (or indeed on the Saturday) but the Law does not require him to.
The appeals to dismiss was rejected and the Oppositions will proceed on its merits. Costs of 1000 NIS were awarded to Dr Tomer.
I think this ruling was obvious to practitioners. Possibly it has not previously been litigated, but that imply that it was obvious to litigators as well, as I am sure this is not the first time that the last day for filing has been a Friday. What is fascinating here is that the unrepresented Opposer has been awarded legal expenses, despite not incurring any!
Sometimes, when one sees ridiculous stalling tactics by experienced practitioners rejected in favour of arguments supplied by non-represented opposers one wonders who needs professional representation. I would, however, caution non-practitioners with less experience than the Tomers from trying to file oppositions themselves…