Contributed By Gilat, Bareket & Co., Reinhold Cohn Group
The Patents Act defines infringement as exploitation of the invention in the manner defined by the claims or in a similar manner that in light of the claims involves the essence of the invention.
Thus, in addition to protection against literal infringement, the Patents Act also confers protection against infringement of the 'essence of the invention' (gist) sometimes also referred to as the 'doctrine of equivalents'.
In addition, the Supreme Court emphasised the principle of reading the patent document as a whole. As such, the specification cannot be used to broaden the scope of the claims and cannot be used selectively and it is the rule that interpretation of the claims should be purposive. It has been decided that claim construction aims at ascertaining the inventor’s intention expressed in the patent document, as understood by a person having an ordinary skill in the art in the relevant field, given the knowledge existing on the determining date.
A patentee is expected to formulate the patent claims with a reasonable degree of clarity. The Supreme Court enunciated several criteria to assist in determining whether the reasonable degree of clarity was achieved:
Where the proper interpretation of the patent document is unclear, the Israeli and foreign file wrappers may aid in the interpretation. It should be noted, however, that the Supreme Court left open the question of whether or not the doctrine of file wrapper estoppel is applicable in Israel.
Claim construction is an issue of law.