Retroactive amendments
An abstract is only published after the application is allowed, and then the patent and the prosecution file become available for inspection. However, basic details of new patent filings, including the name of the applicant, title, priority and filing dates must be published in the Official Israel Patent Office Gazette (Reshumot in Hebrew) shortly after filing.
A proposed amendment to have automatic publication 18 months from priority, as occurs at many other patent offices, had a first reading some years ago, but so far, it has not entered the law.
Back in 2007, due to delays in publishing the printed gazette, the cost and general inconvenience, Dr. Meir Noam, then commissioner of patents, decided to make the information available on the Internet instead of in the printed gazette.
MK David Rotem, chairman of the Knesset Constitution, Law and Justice Committee, criticised Noam for exceeding his authority. The criticism centred around the Patent Office collecting the first publication fee from all applicants for four years despite not publishing the information on paper. This development sparked a class action and resulted in the Ministry of Justice announcing that the three million shekels ($841,000) of fees paid over the period in question would be refunded to the applicants.
On January 12, 2011, the Knesset passed an amendment to the Israel Patent Law 1967 that became effective January 1, 2007. According to the amendment, the first publication is to be on the Internet and not in the official (printed) Patent Office Gazette. Therefore, in retrospect, it appears that Dr. Meir Noam did nothing wrong by publishing these details on the Internet.
“An abstract is only published after the application is allowed and then the patent and the prosecution file become available for inspection.”
In Israel, although retroactive legislation is allowable, such laws are problematic. Generally, retroactive amendments should be applied with care. In this instance, the retroactive nature of the amendment was necessary because otherwise the publication of patent application details on the Israel Patent Office website before their publication in a printed gazette would probably be considered a breach of confidentiality and therefore illegal.
It should be noted that publication in the Official Gazette is itself a legal fiction. As former Supreme Court Judge Chaim Cohen said:
“Publication in the Reshumot has a special value in that what is publicized there—and only there—is considered as published in practice. Even though the man in the street never reads the Reshumot, he cannot claim (in his defense) that he was unaware of what is published there, or what 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.”
As former Knesset member and expert on constitutional law, Professor Amnon Rubinstein pointed out that, in a parliamentary regime such as Israel’s, in which the government holds power by virtue of the support of the Knesset, no practical importance attaches to rules regarding legislative guidelines.
In other words, the Knesset can do what it likes.
There are other pending amendments to the Israel Patent Law that are stuck at various stages of legislation. These include:
