א.ש.י.ר. חוגגת עשרים - מחקר אמפירי: ‏מ‏חקר אמפירי

In 1998, in the landmark case of A.SH.I.R., the Israeli Supreme Court ruled that the law of unjust enrichment applies alongside intellectual property law. Thus, a plaintiff can seek recovery against an imitator based on unjust enrichment even in the absence of a valid intellectual property claim. The judgement was described as a dramatic development in Israeli private law and triggered much controversy. One of the major concerns was that the ruling would result in an unjustified,indirect expansion of intellectual property rights, beyond their recognized statutory limitations, and would yield a chilling effect in the field of innovation. Accordingly, there were numerous proposals to overrule the decision, including in a recent Attorney General opinion submitted to the Supreme Court.This study seeks to evaluate the implications of A.SH.I.R. empirically,twenty years after the original decision. We first perform a quantitative analysis, examining all Supreme Court and District Court decisions rendered during the twenty-year period that included an unjust enrichment claim, which was raised in regard with imitation of intellectual products. We then proceed to a qualitative analysis, focusing on“A.SH.I.R.-like” cases, where the unjust enrichment claim was upheld despite the absence of intellectual property protection. We find that,contrary to the gloomy predictions, the A.SH.I.R. case, as applied by the courts, did not cause an upheaval in the field of intellectual property. Out of more than four hundred decisions concerning intellectual property and unjust enrichment, the number of decisions where the unjust enrichment claim was upheld despite the absence of a specific IP right is very small.Moreover, these cases can be classified into several distinct categories, in each of which there was a noticeable shortcoming in the Israeli intellectual property landscape. The major concern voiced by the critics, that courts would unduly expand the boundaries of intellectual property protectionthrough unjust enrichment, materialized in no more than two or three cases. On the other hand, the law of unjust enrichment was recently used in one case in a “reverse” manner, as a means to restrict intellectual property rights and promote competition. We discuss these findings vis-à-vis the notions of certainty, flexibility, and unintended consequences,and conclude that they necessitate a re-evaluation of the calls to over rulethe A.SH.I.R. decision.