However, the plaintiffs did not attach these documents to the affidavit on their behalf, and did not refer to them therein. Thus, they did not declare that documents existed on their servers prior to March 29, 2020 (the date of the defendants' patent application), or that Prof. Seroussi had access to them. Indeed, in their summaries they claimed (at paragraph 97) that these documents were on the plaintiffs' servers, but Prof. Seroussi's access to them has not yet been established; and more importantly, it is not possible in the summaries to prove facts that were not claimed and not proven before, in the plaintiffs' affidavits or in the testimony of anyone on their behalf.
- The fact that Prof. Seroussi's exposure to the plaintiffs' ventilator structure prior to the filing of the patent application on behalf of the defendants on March 29, 2020 undermines the presumption of use, and in fact negates it.
- Another appeal of the presumption of use is found in the material difference between the plaintiffs' breathing apparatus and that of the defendants. Dr. Bressler admitted in his interrogation (pp. 473-474) that the location of the chip in the two devices - that of the plaintiffs and that of the defendants - was different. The location of the chip in the defendants is in a wide place, while in the case of the plaintiffs it is located in a narrow place in the center of the pipe. Dr. Bressler noted that as far as he is concerned, this is a "low" of the technology. Still, taking into account this characteristic, along with the evidentiary deficiency in Prof. Seroussi's access to the plaintiffs' developments, I am not persuaded that the plaintiffs were able to prove theft and use of their second trade secret.
Stopover: A look at the road we have traveled so far and the road that remains
99. So far, the theft of the plaintiffs' third trade secret and its use by Prof. Seroussi has been established. It now remains to discuss the question of whether the defendants in the circumstances of the case were protected by virtue of patent law or by virtue of the Commercial Torts Law, and whether liability was also established by the Negev Company and Ben-Gurion University.
The defendants do not have a defense by virtue of the Merck case (patent law)
- The defendants are trying to avoid liability for the theft of the trade secret, in light of the patent applications filed by the plaintiffs. We are in an interim period, in which, on the one hand, the application has been filed, which includes details of the invention, and on the other hand, the patent on the accompanying monopoly has not yet been
In accordance with the Merck case, commercial competition between the parties during this interim period should not be restricted by virtue of a legal branch that is external to patent law (such as the Commercial Torts Law).