Turkey: Discovery of evidence is not subject to Bolar exemption

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Turkey: Discovery of evidence is not subject to Bolar exemption

Discovery of evidence and actions for determination of evidence are separately regulated under the Civil Procedural Law. Discovery of evidence is a preliminary step taken before any action on merits and it only serves to discover and record the evidence that may be relevant to an ongoing or future action on merits.

It must be emphasised that there is no full and frank disclosure procedure under the Turkish civil law system unlike the US and UK systems. In other words, the parties can decide at their discretion which documents they will or will not submit to the court so it is not mandatory to disclose all information. Therefore discovery of evidence from a third party via court proceedings is crucial. Article 400 of the Turkish Code of Civil Procedure rules that the party asking for discovery of evidence must have a legal interest in the discovery/determination of evidence and it is accepted that a legal interest exists if the evidence is lost or it will be seriously difficult to depend on that evidence unless discovered right now.

The discovery and the collection of evidence is monitored and executed by the IP court. Especially in the enforcement of pharmaceutical patents, the patent owner, constantly blocked from enforcement due to the so-called Bolar exemption may use the discovery of evidence tool at least to complete the preparations for an enforcement action. However, every day Turkish IP courts are widening the boundaries of the Bolar exemption. As per the latest interpretations of the IP courts, Bolar immunity lasts until the Gx product launches and within this period, the patent holder cannot take any action. However, as discovery of evidence is not an action on merits, it is not blocked by the Bolar exemption and drastically helps the patent holder to discover the evidence for infringement beforehand. The discovery of evidence does not have the legal character of a lawsuit, therefore the statutory period does not include this process. The tangible facts constitute the topic of discovery of evidence. The courts can also accept discovery of evidence ex parte upon the request of the patent holder if the conditions under Article 403 of the Civil Procedural Law are met. Since discovery of evidence is not an action on merits, there is no appeal mechanism. However, the counterparty can oppose the decision of discovery of evidence on the ground that the conditions under Article 400 are not met. This objection is examined and concluded by the same court which conducted the discovery of evidence.

The action on determination of evidence is distinct from the discovery of evidence and is an action on merits. It can therefore be blocked by the so-called Bolar exemption depending on the interpretation of the IP court.

erciyas.jpg
korkmaz.jpg

Selin Sinem Erciyas

Aysel Korkmaz Yatkın


Gün + PartnersKore Şehitleri Cad. 17Zincirlikuyu 34394İstanbul, TurkeyTel: + (90) (212) 354 00 00Fax: + (90) (212) 274 20 95gun@gun.av.trgun.av.tr

more from across site and SHARED ros bottom lb

More from across our site

Ulla Loreth, IP counsel at Puma in Germany, says logistics intermediaries can no longer turn a blind eye after ‘game-changing’ judgment in the fight against counterfeits
Ahmed Hankawi joins us for our ‘Five minutes with’ series to discuss his approach to cases, and why he admires lawyers who help develop the next generation
Mercedes Bullrich looks back on her career and explains how a life shaped by fresh starts will help her develop a new firm
AI
Leaders at four firms share their hiring approach, including whether AI knowledge is a must-have for new staff
McKool Smith and Licks Attorneys are acting in the dispute, which alleges infringement of patents covering video-related technologies
Legacy firm Allen & Overy agreed a high-profile tie-up with US firm Shearman & Sterling in May last year
News of Verizon settling its lawsuit with Headwater Research and a copyright setback for AI firm Perplexity at a New York court were also among the top talking points
IPH, which owns several IP businesses in the APAC and Canada, reported a 16.5% increase in revenue and 13% jump in profit after tax
With Ireland’s government re-engaging with the idea of a UPC referendum, it provides a chance to improve the system further
US-based company says appointment of Jorge Ordonez shows its momentum as a private-equity-backed platform expanding in the IP services market
Gift this article