The doctrine of laches allows the court "to shorten the period in which legal proceedings may be taken in those cases where this is required for reasons of justice and fairness towards the defendant" (CA 4352/15 Koren...), and also in view of considerations of public interest and concern for maintaining proper judicial proceedings.
34. Laches is a measure that will be used only in exceptional circumstances, as it harms the plaintiff's expectation to plan his steps according to the limitation laws set in the statute... The claim of laches imposes a heavy burden on the one raising it.
35. Two central considerations have been mentioned in case law regarding the issue of laches. The first – the creation of a representation on the part of the plaintiff regarding the abandonment of the right of claim... A second consideration referred to by case law is a change in the defendant's position for the worse due to harm to his ability to prove his claims in view of the delay. An additional consideration sometimes mentioned... is conduct in bad faith on the part of the one delaying...
(Discussion on subjective laches vs. objective laches).
36. The Court has discretion regarding the circumstances of the case in which there is room to accept a claim of laches. Within its discretion, the Court will examine, among other things, the relationship between the parties, the nature of the right claimed, the remedy requested, the public interest at stake, and the duration of the delay.
37. (Citations of extensive case law on laches).
Laches – From the General to the Specific
38. The claim of laches (and similarly – the claim of estoppel) is raised by the Defendants mainly against the background of the events in 2013... [Recap: Mitug warned Shva and Margalin in July 2013, warnings were rejected, Mitug did not sue then but only in 2017].
39. After reviewing the entirety of arguments, I did not opine that the heavy burden was lifted to prove that the circumstances of the matter justify the exceptional and rare conclusion of dismissing a lawsuit due to delay in its filing. The concrete delay has implications, but not to the extent of total dismissal of a claim.
40. Regarding the subjective aspect, Mitug did not "disappear" without any explanation and in a manner implying waiver of claims. On the contrary. Shitrit announced to Shva on Sept 8, 2013, that due to circumstances... he is forced to cut off the proceedings but still stands behind the letters sent and reserves his and Mitug's rights.
41. Keren HaTamar claims it did not see the letter addressed to Shva, however, I was not convinced that the transaction between Shva and Keren HaTamar was completed without the Fund being, at the very least, updated regarding this letter... Moreover, in 2014 there were direct contacts between Keren HaTamar and Mitug/Shitrit. These did not go well (to put it mildly) but Mitug's position regarding its rights in the Software was raised clearly and decisively.
42. Indeed, Mitug did not act to enforce its claimed rights until 2017. Shitrit explained this with a medical condition... understanding the economic implications... as well as his expectation that matters would be settled through dialogue... I did not find that this is a delay indicating a total abandonment of rights.
43. From the aspect known as objective, a change occurred in the Defendants' position in the sense that the transaction between them was completed without a clarification of rights being performed beforehand... The Defendants completed the transaction knowing that proceedings had not been taken but also that there was no waiver of rights...
44. Summary of this point: This is an event beginning roughly in July 2013. The claim was filed in June 2017, not even close to the end of the limitation period. Only rarely will the court infer that a person waived his right in an asset of real value because he delayed in filing a claim... The case before us does not justify such a conclusion. Likewise, I did not find that the delay... amounts to bad faith justifying total dismissal. The delay in filing the claim will be expressed partially in the discussion below.
The Question of Ownership in the Software
45. At the base of the disputes between the parties stands the question of ownership in the Software (MultiXFS) developed by Mitug.
46. Both Mitug and Shva agree... that according to the relevant law, ownership in the software belongs to the creator (Mitug) unless agreed otherwise explicitly or implicitly.
47. The agreement document from 2006 bears the title "Agreement for Use of MultiXFS Software". This title does not indicate a sale or transfer of ownership in the software but rather the granting of permission for use only. The granter of usage permission is, as a rule, the owner.
48. The spirit of the title fits the content of the document... For example, the document refers to "use of copies"; it was determined that the Source Code would be installed "for safekeeping" at Shva (if ownership was given to Shva, there is no place for a provision referring to transfer "for safekeeping"); and the document establishes that Shva shall be entitled to install the Software in any ATM machine... and it will pay a sum ($350) as a "one-time licensing fee". An entity that is the owner of software does not need permission for its installation and does not need to pay licensing fees for every installation.
49. Shva claims that despite all the above, the 2006 document should be seen only as an amendment to the 2005 Agreement... Shva's grasp on the 2005 Agreement stems from the arrangement determined therein regarding intellectual property ownership. Section 6.2 of the 2005 Agreement states that the source code of all software products developed "except for the Multix software," shall be the exclusive property of Shva... Shva seeks to apply the 2005 Agreement to the Software at the base of the dispute as well...
50. Shva's position contradicts the language of the document signed by both parties. The document was also upheld in practice, at least in the sense that Shva paid licensing fees over the years for copies of the Software installed...
51. Shva points out that in the 2006 document, it is granted significant rights, such as adapting components in the software according to its needs, and claims these are characteristics of ownership. I did not opine that these characteristics indicate a transfer of ownership...
52. (Discussion on economic/commercial logic raised by both parties).
53. The parties have factual disputes regarding the circumstances of the engagement in the 2006 document... Milvitzky did not testify... Refaeli's knowledge relies essentially on documents and hearsay...
54. During Shitrit's cross-examination, Shva's counsel began to state things which according to him are a paraphrase of things told to him by Milvitzky... The court allowed confronting Shitrit with this version, however, this is not testimony at all... This is an internal diagram an attorney made for himself... inadmissible evidence...
55. At the same time, one can consider that the evidentiary deficiency Shva fell into due to Milvitzky's health condition is a situation related to the timing of the proceeding... The years that passed worsened Shva's position on the evidentiary level...
56. One can also consider that a dispute regarding ownership arose between the parties as early as 2007, and that written evidence indicates that Milvitzky believed at that time that ownership in the Software belonged to Shva... Subsequently, the parties saw fit to sign a document (2007 Agreement) which included... "This proposal is supposed to leave the existing situation regarding rights as is, each according to their understanding...".
57. In the circumstances of the matter... I found not to set factual determinations based on oral versions... but to prefer the written document signed by the parties... The 2006 document, by its title and content, supports Mitug's position.
58. Summary of this point – The ownership in the Software was and remains Mitug's.