While the Jews have had continuous ties to the Land of Israel for over 3000 years, for most of that time they have not ruled over the area. The modern State of Israel has only been around since 1948; the British ruled from 1917-1948, and immediately preceding that there was the Ottoman Empire. The British put some of their own law in place, but kept a fair amount of Turkish law as well, and upon the establishment of the State of Israel, existing British and Turkish law was maintained until it was supplanted by Israeli legislation. Today, most of the laws in Israel are the result of enactment by the Knesset (Israel’s parliament), but here and there some British or Turkish law still applies. One area in which this is the case is the official language.
A 1922 British proclamation decreed that English, Hebrew and Arabic would be the official languages in Mandatory Palestine, with preference given to English in certain respects. Although the preference for English has long since been abolished, the proclamation itself has never been retracted, and thus, strictly speaking, English remains an official language. As a practical matter, this is generally not the case: trying to register your home or obtain a driver’s license by applying in English is not recommended, unless you don’t really want to own that home or be allowed to drive.
One long-standing exception to this practice has been the Patent Office, which will accept applications filed in Hebrew, Arabic or English, with over 99.9% of the applications being filed in English. Most of the correspondence with the Israel PTO is conducted in English as well – it’s not uncommon for local patent agents to simply cut-and-paste English-language comments and explanations received from foreign associates into responses filed at the ILPTO. Likewise, the Patents Journal (the local equivalent of the USPTO Gazette) is published in both Hebrew and English, with a representative claim being published only in English. Obviously, the ability to file in English helps keep the cost of patenting in Israel low in comparison to those countries that require translations.
From time to time there have been attempts to amend the law so as to declare Hebrew the only official language. Friday’s Hebrew-language Makkor Rishon newspaper reported a Knesset committee recently rejected an attempt to introduce such a bill; this should lay the matter to rest for at least a few years, and filing of English-language patent applications in Israel should continue apace. Nevertheless, it’s interesting to contemplate the effects, if any, of such legislation would be on Israel patent practice. While it is tempting to think that this will necessarily be a boon to translators and an entirely unnecessary burden on applicants, it’s not clear that that’s the case, certainly not with respect to national phase applications.
The patent statute itself does not explicitly state in what language an application needs to be filed, and in fact the word “Hebrew” does not appear anywhere in the statute. §11(a) of the statute simply says that “A patent application shall be submitted to the Office in the manner and form that will be established, accompanied by the fee that will be established…”; the “to be established” means by way of regulation promulgated by the relevant ministry. Regulation 11(3) establishes that the margin for documents submitted to the ILPTO must be 3-4 cm on the right for documents written in Hebrew or Arabic and 3-4 cm on the left for documents written in English – implying that submission of English-language documents is permissible. (The regulations also require submission of both English and Hebrew-language versions of the title of the invention.) On the other hand, at several places the regulations explicitly refer to “an official language”, thus clearly placing themselves within the confines of what is defined in other legislation as an official language. So on the basis of §11, while at present it can be argued that one may submit documents to the ILPTO in English as a matter of right, it could also be argued that a separate law that establishes a narrower list of official languages that does not include English would override this right.
§17(c) of the statute (discussed previously here and here) states that if one wishes to piggy-back upon the allowance of a corresponding foreign application, one must necessarily provide a translation of the claims of the corresponding allowed claims “in the language in which the application was submitted in Israel”. This implies that more than one language is a permissible filing language in Israel. If viewed as specific legislation, §17(c) would trump more general legislation establishing Hebrew as the only official language. However, §17(c) could also be read as applying within the bounds of the languages that constitute official languages, and therefore circumscribed by any general legislation that excludes English from this list.
One section that is quite clear is §48D of the statute, which deals with national phase filings of PCT applications. §48D states that the applicant must submit a copy of the PCT application to the ILPTO, and that if the PCT application was filed in a language other than English, an English-language translation of the entire application must be submitted as part of the national phase entry. No requirement for a Hebrew-language copy of the application is recited. As this section is specific legislation, it would presumably prevail, even in the face of general legislation limiting the official language to Hebrew, and thus, unless rescinded by the Knesset, national phase applicants would still have a right as a matter of law to file their applications in Israel in English. Such rescission is unlikely, given the apparent dearth of MKs that read, let alone read this blog, and the resultant surfeit of MKs who remain blissfully ignorant of the English-language national phase application requirement.
