When a competitor’s product allegedly infringes a registered patent in Israel, waiting for a final judgment may allow the competing product to become established in the market. Sales may shift to the competitor, prices may erode and relationships with distributors and customers may change. Patent owners therefore sometimes seek a preliminary injunction, also referred to as an interim injunction, at an early stage of infringement proceedings. Yet an order stopping manufacture, imports or sales before infringement has been determined may also cause substantial harm to the defendant.
An application for an interim injunction is therefore a significant proceeding in its own right. The court does not finally decide whether the patent has been infringed. Instead, it assesses whether intervention is justified before the evidence can be examined in full. Ownership of a registered patent, by itself, is insufficient. The applicant must present a prima facie case of infringement, explain the need for immediate relief and address the possible harm to the opposing party.
For foreign patent holders and their counsel, the analysis requires both Israeli patent-law expertise and evidence of the commercial consequences of allowing or preventing the disputed activities in Israel during the litigation.
What Is a Preliminary Injunction in an Israeli Patent Infringement Action?
Section 183(a) of the Israeli Patents Law, 5727-1967, provides for injunctive relief and damages in patent infringement actions. A preliminary injunction may be sought at an earlier stage to preserve the rights at issue and safeguard the effectiveness of the proceedings until final judgment.
The procedural framework is found in Chapter XV of the Israeli Civil Procedure Regulations, 5779-2018, particularly Regulations 94–97. Regulation 94 defines the purpose of interim relief as securing a prima facie right during proceedings and ensuring the proper and effective conduct of the case or enforcement of the eventual judgment.
In a patent dispute, an interim order may be directed at temporarily prohibiting the manufacture, importation, marketing or sale of an identified product. The scope of the requested order should be sufficiently clear to identify the prohibited activities and should not unnecessarily restrict an entire technological field.
A preliminary injunction differs from a permanent injunction. The former is based on an initial evidentiary assessment and a balancing of potential harm; the latter is granted in connection with the final determination of the merits. Granting interim relief does not conclusively establish that the patent is valid or has been infringed. Those issues remain to be resolved in the substantive patent infringement proceedings in Israel.
What Must Be Established to Obtain a Preliminary Injunction?
Regulation 95(b) requires sufficient prima facie evidence supporting the cause of action, satisfaction of the relevant conditions for interim relief and a showing that the measure is necessary to achieve its purpose.
Under Regulation 95(d), the court must consider, among other factors, the potential harm to each party and to third parties or the public; whether a less harmful measure is available; and the parties’ good faith and any delay in seeking relief.
These considerations are interconnected. Strong evidence of infringement does not dispense with examination of the balance of convenience. Conversely, a favorable balance of convenience cannot wholly replace evidence supporting the underlying claim.
The court may also grant relief narrower than the requested order. Where the dispute relates to one component of a complex system, for example, the court should consider whether stopping sales of the entire system is justified or whether the alleged infringing use can be addressed by a more targeted measure.
Chapter 19 of Yonatan Drori’s Patent Law (2023, Hebrew), particularly Sections 19.2.2–19.2.5, examines prima facie entitlement, delay, preservation of the status quo and the balance of convenience. These requirements explain why a registered intellectual property right does not confer an automatic entitlement to interim relief.
Establishing a Prima Facie Patent Right and Infringement
The patent owner should establish the patent’s registration status and identify the operative patent claims. The application must then explain which features of the defendant’s product or process fall within those claims.
Photographs showing that two products look similar, or a general assertion that the defendant copied the invention, are not necessarily enough. The evidence should connect the legal scope of the claims to the structure and operation of the allegedly infringing product or process.
Registration provides prima facie evidence of patent validity. Nevertheless, the defendant may raise substantial validity objections even at the interim stage, including objections based on relevant prior art.
As discussed in Section 19.2.2 of Drori’s Patent Law, an urgent interim hearing is generally ill-suited to a full trial of complex patentability issues. However, clear and significant evidence casting doubt on validity may affect the court’s assessment of the claim’s prospects and the appropriateness of interim relief.
Where the dispute involves material technical questions, expert evidence may explain how the accused product operates, the functions of the relevant components and whether the claimed features are present. An expert should address competing technical explanations rather than merely conclude that the products are “substantially similar”.
A defendant questioning the validity of the patent may also consider separate proceedings before the Israeli Registrar of Patents, subject to the rules governing parallel proceedings. For additional discussion, see Patent Cancellation in Israel. An intention to file a cancellation request does not, by itself, guarantee that interim injunctive relief will be refused.
The Balance of Convenience: Harm If the Injunction Is Granted or Refused
The balance of convenience concerns the practical consequences of each possible outcome. A patent owner may point to loss of customers, price erosion, lasting changes to market structure or damage to relationships with distributors. The defendant may show that an immediate injunction would shut down a production line, disrupt supply agreements, affect employees or destroy investments that would be difficult to recover.
Consider a patent relating to one component of industrial machinery. If the patented feature is a minor component that can quickly be replaced, a limited order may be appropriate. If the alleged infringement concerns the product’s core operating technology and the patent owner produces evidence of continuing harm that is difficult to quantify, the balance may be different.
There is no fixed formula. The nature of the harm, the available evidence and the possibility of proportionate relief are critical.
Regulation 95(d)(1) also requires consideration of potential harm to third parties or the public interest. This may be relevant where an injunction concerns products used in medical treatment or essential systems. Public inconvenience does not automatically excuse patent infringement; rather, it is an additional factor requiring an evidentiary foundation and a reasoned assessment.
Delay, Good Faith and Full Disclosure
A party seeking urgent judicial intervention must explain why relief is needed immediately. If the patent owner knew of the allegedly infringing activities for a substantial period but took no action, that delay may undermine the assertion that the matter cannot await final judgment.
Not every delay requires refusal of an injunction. The court may examine when the relevant facts became known, whether a technical investigation was necessary, whether negotiations took place and what changed in the commercial risk.
Good faith and the duty of disclosure are particularly important where relief is requested without first hearing the defendant. In Magnetica Interactive v. Ambrosia, involving interim relief sought in connection with a patent concerning preparations derived from chia seeds, the court considered the significance of information about the rejection of a corresponding US patent application that the applicant had not voluntarily disclosed. The interim injunction application was rejected, although directions were given for recording sales.
The case illustrates why an applicant should not withhold potentially adverse information in the hope that it will not be discovered. Foreign patent prosecution history, parallel proceedings, relevant prior art and changes in commercial circumstances may all be material to the Israeli court’s decision, even where the applicant believes that they do not ultimately defeat the claim.
Ex Parte Preliminary Injunctions: When Can Relief Be Granted Without Hearing the Defendant?
The ordinary approach is to hear an application for interim relief with both parties present. Regulation 97 permits temporary ex parte relief in special circumstances, where sufficient evidence demonstrates a reasonable concern that the delay involved in hearing the defendant, or merely notifying the defendant of the application, would frustrate the purpose of the relief or cause serious harm to the applicant.
An urgent patent dispute does not automatically justify an ex parte order. Stopping a factory’s operations without hearing its owner is a significant intervention. The applicant must explain why an expedited hearing involving both parties would not provide sufficient protection.
Where an ex parte order is granted, the procedural rules provide for a subsequent hearing involving the parties and examination of whether the interim relief should remain in place. The obligation to present a complete and accurate factual account is especially important in these circumstances.
Regulation 95(c) also permits interim or temporary relief, where justified, before the principal lawsuit has been filed. The action must then be commenced within seven days after the order, or within another period specified by the court. This procedure does not remove the need to prepare the infringement claim and supporting evidence.
Undertakings and Security: The Financial Risks of Seeking an Injunction
An interim injunction can cause significant financial loss to a defendant before the court determines whether patent infringement occurred. Under Regulation 96, an applicant must generally provide a personal undertaking to compensate for damage caused by the order if it expires or its scope is reduced, together with security sufficient to satisfy the court. The regulations permit exemption from the requirement to deposit security on special grounds.
The undertaking is not merely a formality. If an injunction suspends production or prevents imports and it later emerges that maintaining the order was unjustified, the applicant’s financial exposure may be substantial.
Patent owners should consider the possible losses to the defendant before applying for relief. Defendants, in turn, should document the commercial consequences an injunction may cause, including interrupted manufacturing, lost contracts and other quantifiable losses.
The Israeli judiciary provides practical information about undertakings and security for interim relief. The applicable obligations must ultimately be determined under the regulations and the order issued in the particular proceedings.
How Can a Defendant Resist an Application for a Preliminary Injunction?
An effective response does not have to resolve every question of infringement or validity at the interim stage. It should identify the central weakness in the request for immediate relief.
The focus may be a lack of sufficient evidence of infringement, for example because a required feature of a patent claim is absent from the accused product. Alternatively, the defendant may rely on significant prior art, substantial delay by the applicant or serious and potentially irreversible harm if the disputed activities are stopped.
The defendant may also propose a less restrictive alternative. Instead of a blanket prohibition on selling all products, it may be possible to restrict the use of a particular component or require the defendant to maintain detailed sales records until final judgment.
Such alternatives will not be suitable in every case, but they demonstrate the importance of addressing the scope of the proposed order, rather than only whether some form of relief is justified.
In an Israeli decision concerning interim patent relief in the biotechnology field, the court granted relief limited to particular activities without deciding the remaining disputes at that stage. The measure ultimately granted may therefore differ considerably from the restrictions originally requested.
Evidence and Preparation Before Filing
The starting point is to verify the patent’s status and the binding version of its claims. The patent owner should obtain samples of the allegedly infringing product, information about how it functions, advertising and marketing materials, sales dates and evidence of the market developments following the commencement of the disputed activities.
In technically complex cases, an expert opinion may be necessary to demonstrate clearly how the accused product or process satisfies each relevant limitation of the asserted patent claims.
Evidence of urgency is equally important. The application should explain when the alleged infringement became known, why monetary compensation after trial may be inadequate and whether the patent owner acted promptly in the circumstances.
The potential cost of the undertaking and security, and the risk of liability for losses caused by an order that later expires or is narrowed, should also be assessed before filing.
The preliminary injunction proceeding is one part of Patent Litigation in Israel, not a substitute for the principal infringement action. Refusal of an interim injunction does not necessarily mean that the patent will ultimately be found not infringed; conversely, granting one does not guarantee that the patent owner will prevail at trial. The separate question of monetary remedies for infringing activities must also be assessed as part of the substantive litigation.
For detailed discussion, see Yonatan Drori, Patent Law (Hebrew, 2023), Chapter 19, particularly Sections 19.2 and 19.5, addressing the conditions for interim relief and defenses against it. The principal procedural provisions are Regulations 94–97 of the Israeli Civil Procedure Regulations, 5779-2018, as amended.
