The Turkish Supreme Court recently published a decision in which
it chose to uphold rejection of a non-infringement determination
request. The request asked the court to give a pre-emptive
determination that the plaintiff's acts and products do not
infringe the defendant's patent rights. The Supreme Court
upheld a lower court's decision to reject the request, on the
basis that the plaintiff's acts are clearly permitted by the
legislative Bolar exemption.
Obtaining a declaratory judgment in which a court determines
that infringement has not occurred ("non-infringement
determination") is a key pre-emptive defensive
measure for protecting intellectual property. Turkish law allows
any interested party to ask the courts for a non-infringement
determination against the registered owner of a trademark, patent,
or industrial design ("Right Owner").
Prior to initiating proceedings, the requesting party will usually
send a notice to the Right Owner through a notary public. The
notice enables the Right Owner to comment on the requesting
party's manufacturing activities, or manufacturing
According to the Turkish Patent Law, conducting the necessary
studies or trials, then filing a marketing authorization request
with regard to a generic drug is not considered to be an infringing
act, despite the original drug still being protected by an active
patent. These circumstances are commonly referred to as the Bolar
The plaintiff argued that its license application filed with the
Ministry of Health is outside the scope of the defendant's
patent. Accordingly, the plaintiff sought a determination from the
court that its acts and products did not infringe the
defendant's patent rights.
The defendant argued that he did not know the content of the
plaintiff's license application and declared that he has not
made any allegations about patent infringement. Accordingly, the
defendant sought cancellation of the plaintiff's action.
The First Instance Court rejected the plaintiff's request
for a non-infringement determination on the basis that:
Neither party sent any cease and
desist letters before the plaintiff filed the action.
Filing the action achieves no legal
benefit because the plaintiff's acts are clearly permitted by
the legislative Bolar exception.
The defendant appealed to the Supreme Court, which upheld the
First Instance Court's decision to reject the plaintiff's
Case reference:Yarg. 11. HD. 23.06.2014, 2014/6103
E., 2014/11843 K
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