Patent Litigation Comparative Guide -

1 Legal framework

1.1 Which laws and regulations govern patent litigation in your jurisdiction?

Industrial Property Law: This law sets out the primary legal framework for industrial property in Türkiye, including patents. It regulates the prosecution and enforcement of patent rights.
Regulation on the Implementation of the Industrial Property Law: This regulation provides additional details and procedures related to the implementation of the Industrial Property Law, including the rules on patent litigation.
Regulation on the Application of the European Patent Convention in Türkiye: This regulation sets out the principles and procedures for the implementation of the European Patent Convention in Türkiye, encompassing the relevant principles, rules and conditions on the subject.

1.2 Which bilateral and multilateral agreements with relevance to patent litigation have effect in your jurisdiction?

European Patent Convention (EPC): Türkiye is also a member of the EPC, which allows applicants to seek patent protection in multiple European countries through a single application.
Implementing Regulations to the Convention on the Grant of European Patents: These regulations:
- set out the rules on applications made under the EPC; and
- provide assistance in interpreting the implementation of the EPC.
Patent Cooperation Treaty (PCT): The PCT is an international treaty that simplifies the process for filing patent applications in multiple countries. It provides a unified procedure for filing patent applications, making it more efficient for applicants seeking international patent protection. A PCT application provides a streamlined process for seeking patent protection in multiple countries.
Paris Convention: This convention establishes certain minimum standards for the protection of IP rights among member countries.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs): Türkiye is a party to TRIPs, which sets out minimum standards for the protection of various forms of intellectual property, including patents. TRIPs:
- requires member countries to provide for the effective protection and enforcement of patents; and
- regulates topics such as:
- - patentability;
  - the rights of patent holders;
  - exceptions to patent protection; and
  - compulsory licensing.
Strasbourg Agreement: The Strasbourg Agreement relates to the international classification of patents according to the relevant technological field.
Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure: Administered by the World Intellectual Property Organization (WIPO), the Budapest Treaty establishes a framework for the global acknowledgement of deposits of microorganisms intended for patent procedures.
Patent Law Treaty (PLT): The PLT is an international treaty administered by WIPO which aims to simplify and standardise administrative procedures in order to enhance efficiency for applicants in navigating the patent application process.

1.3 Which courts and/or agencies are responsible for interpreting and enforcing the patent laws? What is the framework for doing so?

The Turkish Patent and Trademark Office (TurkPatent): TurkPatent is the administrative body responsible for the application and registration of patents in Türkiye. It operates under the Ministry of Industry and Technology.
First-instance local civil courts: Patent disputes in Türkiye fall under the jurisdiction of the civil courts. Specialised IP courts have been established in various cities (Istanbul, Ankara, Izmir and Antalya) to handle IP cases, including patent litigation. Where there is no specialised IP court, cases are heard by either the first or third chamber of the civil courts of general jurisdiction.
Criminal courts: There are no criminal sanctions for patent infringement
Regional appellate courts: Decisions of the local civil courts can be appealed to the regional appellate courts. Please see question 13.
Supreme Court: Decisions of the regional appellate courts may be further appealed to the Supreme Court. Please see question 13.

2 Forum

2.1 In what forum(s) is patent litigation heard in your jurisdiction? Are patent infringement and validity decided in the same forum or separate forums?

The competent court for infringement actions filed against third parties by a patent holder is the court where:

the plaintiff resides;
the wrongful act was committed; or
the effects of the wrongful act have been observed.

The patent holder has the right to choose one of these courts in which to file the lawsuit.

If the competent court where the patent holder resides is chosen and the patent holder does not reside in Türkiye, the competent court will be that at the place where the registered agent for the IP right that is the subject matter of the case is based.

The competent court for invalidity and declaration of non-infringement actions is the court where the patent holder – in other words, the defendant – resides. If the patent holder does not reside in Türkiye, the competent court will again be that at the place where the registered agent for the IP right that is the subject matter of the case is based.

If the records of the agent are deleted, the appropriate court is that at the place where the Turkish Patent and Trademark Office is located – that is, the specialised IP courts of Ankara.

Turkish patent law does not provide for a bifurcated system. Thus, infringement and invalidity actions can be heard by the same court at the same time. Invalidity is usually raised as a defence by the defendant against an infringement action.

All IP matters are heard before the specialised IP courts in the cities of Istanbul, Ankara, Izmir and Antalya. If the competent court is not in Istanbul, Ankara, Izmir or Antalya, the action must be filed in the general civil courts.

2.2 Who hears and decides patent disputes (eg, a judge, a panel and/or a jury)?

The specialised IP courts and the general civil courts consist of one judge. The judges of the specialised IP courts have experience of IP disputes but no technical background.

First-instance decisions are appealed to the regional appellate courts, which consist of a panel of three non-technical judges.

Decisions of the regional appellate courts are appealed to the Supreme Court, which consists of five non-technical judges.

2.3 Are there any opportunities for forum shopping in your jurisdiction? If so, where and how do those opportunities exist?

Where a patent holder files an infringement action against a third party, it has the opportunity to choose the venue. The first consideration affecting this decision is whether a specialised IP court is located at one of these venues. The advantages are that:

the specialised IP courts and the experts of these courts are more experienced; and
these courts have been involved in the most complex patent disputes and decisions that have shaped the Turkish patent litigation environment.

3 Parties

3.1 Who has standing to file suit for patent infringement? What requirements and restrictions apply in this regard?

A patent infringement suit can be filed by the patent holder or by an exclusive licensee unless otherwise specified in the licence agreement.

If certain obligations are fulfilled, non-exclusive licensees can also file a patent infringement suit if the right to institute a suit is not explicitly restricted in the licence agreement. Non-exclusive licensees must request the patent holder to file the required action through a notification served on the patent holder. If the patent holder does not accept the request or does not file the requested action within three months of the date of notification, the licensee, by attaching the served notification, may file an action on its behalf to the extent required by its interests. A non-exclusive licensee must notify the patent holder that it has filed an action.

3.2 Can a patent infringement suit be brought against a defendant who is a foreign entity with only a residence or place of business outside the jurisdiction?

A patent infringement suit can be brought against a foreign entity which is domiciled outside Türkiye, but the alleged infringement should have been committed in Türkiye. This means that a third party cannot be held liable in Türkiye for infringements committed outside of Türkiye.

For foreign defendants with no domicile in Türkiye, the courts will use international notification channels to notify the defendant of the suit. Please see question 2.1 for details of the competent courts and jurisdiction where the defendant is a foreign entity.

3.3 Can a single infringement action be brought against multiple defendants? What requirements and restrictions apply in this regard?

A single infringement action may be brought against multiple defendants in the following cases:

The right or obligation that is the subject of the action is common between the defendants for a reason other than unanimous ownership;
A right has arisen for the benefit of all of them through a joint transaction or they have incurred obligations in this way; or
The facts and legal grounds that form the basis of the actions are identical or similar to each other.

Each defendant acts independently from the others. Their defences and claims on procedural grounds and on the merits can be different and separate from each other. The defendants can be represented by different attorneys.

On the other hand, the claims and evidence are examined together. The courts and the experts will examine and evaluate all claims and evidence together.

The court will render a single decision for all defendants, but this decision will state the ruling for each defendant separately and the rulings may be different from each other. This means that the patent holder may win the case against one defendant but lose against another.

For example, a single infringement action could be brought against:

the manufacturer of infringing products and the distributors of the manufacturer; or
the importer of a patent-protected active pharmaceutical ingredient (API) and a company using the API to manufacture medicine.

3.4 Can a third party seek a declaration of non-infringement or invalidity in your jurisdiction? If so, how?

A third party can seek a declaration of non-infringement or invalidity.

The IP Code suggests that any third party with an interest may request that the patent holder express its observations on whether a commercial or industrial activity it has engaged in or will engage in Türkiye or substantial and effective ventures intended for such purposes would constitute infringement of the patent.

If the third party is dissatisfied with the response of the patent holder or if the patent holder does not reply to the request, the third party may institute a declaratory non-infringement action. Informing the patent holder is not a prerequisite or condition for instituting this action. In other words, a court action for a declaration of non-infringement is admissible even if no notice is given to the patent holder. A declaration of non-infringement action cannot be filed by a third party against which an infringement action has already been filed.

Third parties are entitled to claim patent invalidity by instituting an invalidity action against the patent holder, enforced either as an independent action or as a counteraction within the patent infringement suit.

4 Patent infringement

4.1 What constitutes patent infringement in your jurisdiction?

There are two types of infringement: direct and indirect.

Under the IP Code, the following acts constitute direct patent infringement:

manufacturing the patented invention in whole or in part;
selling, distributing, importing or commercialising in any other way products manufactured as a result of the infringement;
possessing products manufactured as a result of the infringement for commercial purposes;
using products manufactured as a result of the infringement;
proposing an agreement for products manufactured as a result of the infringement;
using a patented process;

selling, distributing, importing or commercialising in any other way products obtained directly through a patented process;
possessing products obtained directly through a patented process for commercial purposes;
using products obtained directly through a patented process;
proposing an agreement for products obtained directly through a patented process;
usurping patent rights; and
extending or transferring the rights granted based on a contractual licence or compulsory licence without permission.

In case of indirect infringement, a third party does not commit the above acts but enables other parties to infringe a patent by supplying means which:

relate to an essential part of the invention; and
render implementation of the patented invention possible.

A patent holder is entitled to prevent third parties from supplying these means to persons that are not authorised to work with the patented invention. For this provision to apply, concerned third parties (suppliers) must know that:

such means are sufficient for implementation of the invention and will be used to such effect; or
the circumstances render such a situation sufficiently evident.

However, if means which relate to an essential part of the invention are products that are commonly found on the market, there will be no infringement unless third parties (suppliers) induced the unauthorised persons to commit such infringement.

4.2 How is infringement determined?

The scope of protection of a patent is determined by the claims. Claims will not be interpreted as being confined to their strict literal wording. However, in determining the scope of protection, claims will not be extended to characteristics not claimed but contemplated by the inventor which may be revealed by a person skilled in the art through the interpretation of the description and the drawings. In determining the scope of protection, due account will be taken of any statement made by the applicant during the grant proceedings or by the patent holder during the patent term to determine the scope of the claims.

Literal infringement is determined by:

comparing the alleged infringing product with the patent claims; and
conducting a feature analysis, which is carried out by court-appointed experts.

First the claims are interpreted and their scope determined, and then a comparison is conducted with the alleged infringing product. If all features of the patent claim are present in the alleged infringing product, there is literal infringement.

In their assessment, if the court-appointed expert does not find literal infringement, the usual practice is then to evaluate equivalents (see question 4.3).

4.3 Does your jurisdiction apply the doctrine of equivalents?

The scope of protection of a patent is determined by the claims. Not only the literal meaning of the words used in a claim is taken into consideration, but also equivalents.

In determining the scope of protection conferred by a patent, due account will be taken of any feature which is equivalent to a feature in the claims at the time that infringement is claimed. The doctrine of equivalents covers conditions under which the alleged product or process performs substantially the same function in the same way and leads to the same result as the feature of the claim for the existence of infringement (the 'function-way-result' test).

4.4 Is wilful infringement recognised? If so, what is the applicable standard?

The Turkish courts do not recognise wilfulness or wilful infringement.

Under the Commercial Code, every merchant must act prudently in all business activities. (The term 'merchant' encompasses all natural and legal persons that operate a commercial entity in their own name.) It is accepted that a merchant should know or should have known that its acts are infringing a third party's patent rights. Thus, an alleged infringer has an objective liability not to infringe third parties' rights; its intent does not matter in this regard.

5 Bringing a claim

5.1 What measures can a patent holder take to enforce its rights in your jurisdiction? Are interim measures available before receiving a ruling on the merits?

A patent holder may request a preliminary injunction as an interim measure.

The most important requirement to obtain a preliminary injunction is to submit concrete evidence attesting to prima facie infringement in order to convince the court that there is a risk of infringement. The risk of infringement is demonstrated through approximate proof rather than definite proof. Under the established jurisprudence of the regional appellate courts, in patent infringement actions, the courts will await the first expert report when evaluating requests for a preliminary injunction.

In deciding whether to grant a preliminary injunction, the court will consider:

the balance of rights – that is:
- the possible risks that the patent holder may face if a preliminary injunction is not granted; and
- the possible risks that the infringer may face if it turns out that the preliminary injunction was granted wrongfully;
whether the effectiveness of the final judgment would be ensured by the preliminary injunction (ie, the preliminary injunction should ensure the cessation of an ongoing infringement); and
whether there are concerns that:
- exercising the patent holder's rights will become more difficult or impossible due to a change that may occur in the current situation; or
- an inconvenience or serious damage could arise due to delay.

5.2 What is the limitation period for patent infringement in your jurisdiction?

There is no limitation period for patent infringement suits. However, the following limitation period is set for recovering damages:

two years from the date on which the patent holder became aware of the damage and the infringer; and
in any case, 10 years from the date of the infringement.

5.3 Must the alleged infringer be notified in advance before a claim is brought?

Notification of the alleged infringer/defendant is not required.

5.4 What are the procedural and substantive requirements for bringing a claim for patent infringement? How much detail must be presented in the complaint?

The Turkish procedural system is frontloaded. Each party is allowed to submit two sets of petitions. The plaintiff files the action by submitting a writ of summons and the defendant then submits its first statement of defence. Next, the plaintiff submits its reply petition and the defendant then submits its second statement of defence.

The plaintiff has the right to amend or expand its claims until it files its reply petition. The defendant has the right to amend or expand its defence until it files its second statement of defence. In other words, the prohibition on the amendment and expansion of the claims and defence commences with the submission of the second petitions of the parties.

Once these deadlines have expired, the parties are allowed to amend or expand their claims and defence only:

with the explicit approval of the other party; or
by exercising their right to an 'amendment of pleading' – a right which is granted once only for each party.

5.5 Are interim remedies available in patent litigation in your jurisdiction? If so, how are they obtained and what form do they take?

5.6 Under what circumstances must security for costs and/or damages incurred by the other party be provided?

There are two types of security:

security for filing the court action; and
security for a preliminary injunction decision.

If there is a bilateral or multilateral agreement between Türkiye and a foreign country in which the plaintiff is resident, the plaintiff will not be ordered to pay security for costs and/or damages. The Hague Convention on Civil Procedure of 1 March 1954 is the treaty with the most signatories which releases natural and legal persons from the requirement to deposit a security.

Although a bond is not procedurally obligatory for the grant of a preliminary injunction, in practice, the courts grant preliminary injunctions on condition of a guarantee. The amount of this guarantee may vary from €7,000 to €285,000, depending on the case. Once the preliminary injunction has been granted:

the guarantee payment – if any – must be deposited within one week of notification of the preliminary injunction decision; and
execution of the preliminary injunction must be requested from the execution offices within the same timeframe; otherwise, the preliminary injunction will be lifted.

6 Disclosure and privilege

6.1 What rules on disclosure apply in your jurisdiction? Do any exceptions apply?

Each party is allowed to submit two sets of petitions in which they set out their evidence. Within two weeks of notification of the invitation to the preliminary examination hearing, the parties must submit to the court the documents that they have listed in their petitions but have not yet submitted. If they fail to do so within the specified timeframe, they will be deemed to have waived reliance on this evidence. Unless there is explicit approval of the other party or an 'amendment of pleading' right is exercised, the parties may not submit more evidence. That said, in practice, the courts tend to accept evidence that is submitted after the deadline.

6.2 What rules on third-party disclosure apply in your jurisdiction? Do any exceptions apply?

The courts may subpoena evidence that is in the possession of third parties. Infringing products or processes that are in the possession of third parties may be inspected through an evidential action (see question 7.1).

Based on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the Turkish courts may request the courts of foreign contracting states for permission to obtain evidence or perform some other judicial act in the contracting state, and vice versa.

6.3 What rules on privilege apply in your jurisdiction? Do any exceptions apply?

Under Article 36 of the Attorneys' Act, attorneys are prohibited from disclosing information that has been entrusted to them or that they acquire in the course of performing their duties. This obligation must be abided by indefinitely, even if the attorney is dismissed from his or her duties.

The courts cannot order or force attorneys to disclose information on their clients. Communications between client and attorney are privileged and the courts cannot order discovery of these communications.

An attorney:

cannot be compelled to be a witness concerning his or her client; and
cannot be subjected to any legal or criminal liability for refusing to be a witness.

Under the Patent Attorney Disciplinary Regulation, patent attorneys are obliged:

not to disclose the duties entrusted to them or information about clients that they learn of in any way; and
to keep such information confidential.

7 Evidence

7.1 What procedure(s) exist for collecting and presenting evidence in patent infringement litigation?

It is possible to file an evidential action for the collection of evidence. This is an ex parte court action and is not notified to the adverse party. Evidence is collected by court-appointed experts, who may:

visit the premises of the alleged infringer to review/take photos of machinery; or
purchase allegedly infringing products.

The courts do not render any decision in this type of action, which concludes upon submission of the expert report.

7.2 What types of evidence are permissible in your jurisdiction? Is expert evidence accepted?

The parties must support the facts on which they rely in a court action. The following are considered to have evidentiary value:

written or printed texts;
receipts;
drawings;
plans;
sketches;
photographs;
films;
video and sound recordings;
electronic data; and
similar types of information that can prove the facts in dispute.

The court must notify the relevant official authorities and third parties in order to collect evidence that is not in the possession of the parties. Evidence that cannot be brought to court physically may be examined or heard at the place where it is located. Private expert reports are accepted as evidence. The court may invite the private experts of both parties to the hearings for cross-examination on their views and opinions in the presence of the parties' patent attorneys and attorneys at law.

In all cases, the court appoints a panel of experts, as the judges in Turkish courts are non-technical judges. The panel is usually comprised of:

one Turkish patent attorney or European patent attorney; and
two technical experts with a background in the relevant field of technology.

Several rounds of expert examinations with different panels can be conducted. Calculation of the amount of compensation (if claimed by the plaintiff) requires further expert examination.

7.3 What are the applicable standards of proof?

Unless it is expressly stipulated in the law or the nature of the dispute does not require it, full proof is sought in a lawsuit. This is because, within the framework of the existing rules on proof and evidence, the court cannot accept a fact claimed by the parties as true without full conviction of that fact. Where full proof is required, the claims must be established without hesitation.

The standard of proof required for grant of a preliminary injunction is approximate proof, which is a lower threshold than that required for grant of a permanent injunction. In the case of approximate proof, the court accepts that the claim is true with a high probability but does not exclude the probability that the contrary is also possible, even if that probability is weak. While full proof is not required, a simple allegation will not suffice either.

7.4 On whom does the burden of proof rest?

The burden of proof rests with the party that derives a right in its favour from the legal conclusion:

In a patent infringement action, the burden of proof rests with the patent holder; and
In an invalidity action, the burden of proof rests with the plaintiff.

8 Claim construction

8.1 Is there a procedure for construing claims during a patent infringement action? If so, when and how is it performed?

There is no claim construction procedure during a patent infringement action. The scope of protection conferred by a patent application or a patent is dealt with during the examination of the patent infringement within the infringement action, not in a separate procedure.

8.2 What is the legal standard used to define disputed claim terms?

The scope of protection conferred by a patent application or a patent is determined by the claims. In interpreting the claims, it is essential that the interpretation be made from the perspective of a skilled person in the relevant technical field. Claims are not interpreted as being confined to their strict literal wording. If a word in the claim is used differently from its literal meaning and a skilled person in the relevant technical field would perceive it as it is meant as it is used in the claim, the claim will be interpreted accordingly.

Claims cannot be extended to features not claimed but contemplated by the inventor which may be revealed by a person skilled in the art through the interpretation of the description and the drawings.

8.3 What evidence does the court consider in defining the claim terms?

Although the essential factor in interpreting the claims is the meaning of a word in the relevant technical field, the explanations in the specification should also be consulted if there is any doubt as to the meaning of a word. If a word in the patent is used with a different meaning from that which is commonly known in the relevant technical field and a special meaning is given to this word in the specification, the meaning intended by the applicant will be decisive in interpreting the claim.

Any statement made by the applicant during the patent granting procedure or by the patent holder during the term of validity of the patent will be taken into account in determining the scope of protection.

Claims are interpreted in consideration of the description and drawings. Their interpretation cannot be restricted to the examples in the patent document.

8.4 Can the claims of a patent be amended in the course of the proceedings?

It is not possible to amend the claims of national patents during infringement or invalidity proceedings. If a European patent is subject to infringement proceeding and the subject matter of the court action also concerns the validity of the patent, the patent holder can limit the patent by amending the claims. In such case, the amended patent will form the basis for invalidity proceedings. The court may decide to maintain the patent as amended. A patent holder cannot limit a European patent in a court action which relates exclusively to patent infringement. In such case, although no decisions have been issued in this regard, it seems that the most reasonable approach is for the court to decide:

first on the validity of the amended claims; and
then on infringement based on the amended claims.

In the past, claims were amended by applying directly to the Turkish Patent and Trademark Office, which would forward the amendment to the court; the new claim set would then constitute the basis of the action. Today, however, the practice is to submit the amendment to the court before which an action is ongoing.

9 Defences and counterclaims

9.1 What defences are typically available in patent litigation?

Invalidity action: A counterclaim for invalidity may be brought in the form of a court action, which can be filed as:
- a counteraction against the infringement suit; or
- a separate action.
Determination of non-infringement action: All third parties who have legal interest may file a court action to determine whether a commercial activity in which they have engaged or will engage in Türkiye, or activities intended for such purposes, would constitute patent infringement. Such an action may not be filed by a person against which an infringement action has been filed.
Prior use defence: If a person used the invention, or made serious and effective preparations to use the invention, in Türkiye before the patent application date, the patent holder cannot prevent that person from continuing to use the invention in the same manner as before or from commencing use of the invention to the extent necessary to meet the reasonable needs of its business.
Acquiescence defence: Acquiescence is not regulated by the IP Code and derives from the principle of good faith (Article 2 of the Civil Code). If a patent holder knew or should have known that its patent was infringed but remained silent regarding the infringement and thus created the impression for the third party that no action would be taken, causing the third party to make investments, the infringement claim can be rejected by the courts. The length of time that is considered to constitute acquiescence will be determined on a case-by-case basis.

9.2 Can the defendant counterclaim for revocation or invalidation of the patent? If so, on what grounds and what is the process for doing so?

A counteraction for invalidity is commonly filed by the defendant in an infringement action. The grounds for invalidity are:

lack of novelty, inventive step and/or industrial applicability;
lack of sufficiency;
added subject matter; and
non-patentable subject matter.

9.3 Are there any grounds on which an otherwise valid patent may be deemed unenforceable against a defendant?

The following acts will remain outside the scope of rights conferred by a patent:

acts that are devoid of any industrial or commercial purpose and are limited to private purposes;
acts involving the use of a patented invention for experimental purposes;
acts involving the use of a patented invention to obtain marketing authorisation for pharmaceuticals and the necessary tests and experiments for this;
the use of medicines prepared in pharmacies for the sole purpose of filling a prescription without mass production and acts relating to medicines prepared in this way;
the use of a patented invention in the manufacture or operation of ships, spaceships, aircraft or land transportation vehicles in countries that are signatories to the Paris Convention or to satisfy the needs of these, provided that such vehicles are only temporarily or accidentally within the boundaries of Türkiye; and
acts involving the aircraft of a state stipulated by Article 27 of the International Convention for Civil Aviation, ratified by Law 4749/1945.

10 Settlement

10.1 Are mediation and/or other forms of settlement discussions required by the court in your jurisdiction or merely optional to the parties?

A plaintiff that seeks compensation must apply for mediation before filing a compensation claim in court. An application for mediation is a mandatory precondition for filing a compensation action. Therefore, should a plaintiff decide to claim compensation, it must first contact the defendant through the Mediation Bureau. This precondition applies only to court actions for compensation claims.

Infringement, invalidity and determination actions can be filed without an application for mediation. However, the parties can still resort to mediation if they wish. The courts are obliged to remind the parties to attempt to settle the matter amicably or apply for mediation at the preliminary hearing. The parties can settle the case either on their own or through mediation. In case of mediation, a mediator will be appointed after an application has been filed with the Mediation Bureau in accordance with the Mediation Act (6325).

10.2 Can the proceedings be stayed or discontinued in view of settlement discussions?

If the parties inform the court that they have applied for mediation, the court will suspend the proceedings for three months, which may be extended for a further three months.

If the parties inform the court that they are discussing a possible settlement, the court will suspend the proceedings. No duration for the suspension is specified, but the mediation rules may be applied by analogy.

10.3 Is it necessary to report the results of settlement discussions to the court? If so, how; and what are the implications?

As mediation is a mandatory precondition for filing a compensation action, the plaintiff should include the final mediation minutes in the writ of summons. If not, the court will grant it one week to fulfil this requirement. If the minutes are not presented, the court action will be rejected on procedural grounds.

For other types of actions where mediation is not mandatory, in practice, the proceedings are suspended to postpone the hearings. For example, if the parties inform the court that they are negotiating, the court will set a hearing date which gives the parties reasonable time to try to reach a settlement. On the hearing day, the court will enquire as to the outcome of the negotiations. Therefore, if the parties are discussing a possible settlement without mediation and do not inform the court of the outcome, at the next scheduled hearing the court will ask them about the outcome of the negotiations. If the parties request more time and the court finds this request reasonable, it will postpone the hearing once more. The suspension of the proceedings is at the discretion of the court.

If the parties are engaged in mediation, the court cannot suspend the proceedings for more than six months. Therefore, even if the court is not informed of the outcome of the discussions, the proceedings will resume after six months.

11 Court proceedings for infringement and validity

11.1 Are court proceedings in your jurisdiction public or private? If public, are any options available to the parties to keep the proceedings or related information confidential?

Turkish civil proceedings are public; both hearings and court decisions are open to public viewing. Article 161/1 of the Code of Civil Procedure states that: "Those related to the case can also examine the file with the permission of the judge, provided that the relation to the case is proven." In practice, however, any third party can examine court files without prior approval or proof of its relation to the case. Third parties are only allowed to view the files; making copies is strictly forbidden.

On the request of a person concerned or ex officio, the court may decide to hold some or all of the hearings in private where public morality or public security makes this absolutely necessary. If the court decides to hold the hearings in private, this restriction also applies to the court files, so only the parties to the action can view them.

The parties can also request that certain documents submitted to the court file be kept confidential. These documents are kept in the court's safe and only the parties to the action, court-appointed experts and court officials can view them.

11.2 Procedurally, what are the main steps in patent infringement proceedings in your jurisdiction? Is patent validity handled in the same proceedings as infringement or is it handled separately? If separate validity proceedings are available, what are the main steps in those proceedings?

In both patent infringement and invalidity actions, there are three main stages of a court action before the first-instance courts:

the exchange of petitions;
the examination; and
the decision.

During the exchange of petitions stage, both parties have the right to file two petitions each, including the writ of summons. If there is an invalidity counteraction, the parties are allowed to submit one more petition each. The parties are entitled to request an extension of the timeframe for submitting their responses. Thereafter, the court proceeds with the preliminary hearing. At this hearing, the court:

examines whether the procedural requirements have been fulfilled;
determines the subject matter of the dispute; and
decides to move to the examination stage by appointing a panel of experts.

During the examination stage, the court appoints a panel of experts. The experts submit their report and the parties have the right to object to the report. If the court upholds the objections of the parties, it may:

refer the file to the same panel of experts for an additional report in light of these objections; or
appoint a new panel of experts for the issuance of a new expert report.

If the expert report submitted by the second panel contradicts the first report, the court may decide to conduct a further round of expert examination.

If compensation is requested, there is also a mandatory mediation step to be concluded before filing the court action. Therefore, if the plaintiff decides to claim compensation, it must first contact the defendant to see whether an amicable settlement can be reached through mediation.

An invalidity action can be filed as an independent action or as a counteraction within the context of the patent infringement action. In the case of an independent invalidity action, the court may consolidate the two court actions at its discretion or on the request of the parties.

11.3 What is the typical timeframe for patent infringement proceedings? If separate patent validity proceedings are available, with is the typical timeframe for those proceedings?

On average, a patent infringement action takes three to four years from filing before the first-instance court. If there is an invalidity counteraction, this will be examined in parallel with the infringement action; thus, in case of a counteraction, both actions will conclude within three to four years.

If an invalidity action is filed separately, it can take two to three years from filing before the first-instance court. If the actions are handled independently, the court which is hearing the infringement action will generally stay the proceedings until a decision has been issued in the invalidity action.

11.4 To what extent do the decisions of national or foreign courts or bodies influence the court's decision?

The final decisions of national courts are binding on other national courts. For example, if two different third parties have filed invalidity actions regarding the same patent:

the invalidity decision rendered by the first court will affect the other; and
the second court will cease the proceedings and render a decision that the court action no longer has merit since the patent has already been invalidated, as long as the first court's decision is final (ie, all avenues for appeal have been exhausted). The second court will stay the proceedings until the appeal stages in the first court action have concluded.

Decisions of foreign courts can also be influential, especially where:

the subject matter of the court actions is the same; and
the foreign jurisdiction has identical or similar laws to Türkiye.

Additionally, according to the history of estoppel rule, declarations of the patent holder during the validity of the patent will be taken into account in determining the scope of protection. Therefore, declarations of the patent holder in foreign proceedings will also be taken into account.

12 Remedies

12.1 What remedies for infringement are available to a patent holder in your jurisdiction?

The available remedies for patent infringement include:

monetary damages;
preliminary and permanent injunctions; and
attorneys' fees.

Three types of damages can be claimed in infringement actions:

material damages (in the form of non-realised income and effective loss);
reputational damages; and
moral damages.

12.2 Are punitive or enhanced damages available in your jurisdiction? If so, how are they determined?

There is no punitive damage liability for patent infringement.

In terms of enhanced damages, if lost profits or infringer's profits have been selected as the method of calculating non-realised income, the court will decide for a fair share to be added if it concludes that the patent was the determining factor in generating demand for the infringing products.

12.3 What factors will the courts consider when deciding on the quantum of damages?

Moral damages and reputational damages are awarded at the discretion of the court and in relatively low amounts. The court will consider factors such as:

whether the plaintiff suffered any moral damage;
whether the requested amount is fair;
whether the requested amount is common in the relevant industry/sector;
whether the plaintiff was at fault in any way; and
the economic conditions of the parties and in Türkiye.

Material damage suffered by the patent holder includes not only the value of the effective loss, but also income not realised because of the infringement. Non-realised income is calculated in accordance with one of the following evaluation methods (as decided by the patent holder):

Lost profits: The income that the patent holder might have generated had the infringement not occurred.
Infringer's profits: The net income generated by the infringer from the infringing use of the IP right.
Reasonable royalty: An exemplary licence fee that would have been paid had the infringer lawfully used the patent under licence.

For the first two options above, the court is entitled to increase the non-realised income if it is convinced that the patent was the determining factor in generating demand for the infringing products.

In calculating non-realised income, the court will consider relevant circumstances such as:

the economic value of the patent;
the remaining term of protection for the patent at the time of infringement; and
the type, nature and number of licences granted in respect of the patent.

Compensation is calculated by a court-appointed panel of experts.

13 Appeals

13.1 Can the decision of a first instance court or body be appealed? If so, on what grounds and what is the process for doing so? Please also describe the availability and process for additional levels of appeal.

The Turkish judicial system has three levels. Accordingly, disputes are initially brought before the first-instance courts which reside in almost every city and their counties in Türkiye. Decisions of the first-instance courts can be appealed to the regional appellate courts. An appeal is heard by a panel of three non-technical judges. The regional appellate court may decide to:

uphold the first-instance decision and reject the appeal request;
overturn the first-instance decision and render a new decision; or
overturn the first-instance decision and remand the file to the first-instance court for retrial.

The regional appellate court may hold hearings during the appeal and refer the file to a new panel of experts if it is thought that the matter needs further examination; although this seldom happens in practice.

Decisions of the regional appellate courts are appealed to the Supreme Court. The Supreme Court consists of five non-technical judges. Unlike the regional appellate courts, the Supreme Court will evaluate whether the law was applied correctly to the case. A decision approved by the Supreme Court is final and cannot be appealed further. If a decision is reversed by the Supreme Court, the case file will be remanded to the first-instance court or the regional appellate court (whichever decision is reversed).

13.2 What is the average time for each level of appeal in your jurisdiction?

The examination of the regional appellate court takes between 15 and 20 months. The examination of the Supreme Court takes around 15 to 18 months.

14 Costs, fees and funding

14.1 What costs and fees are incurred when litigating in your jurisdiction? Can the winning party recover its costs?

According to Article 323 of the Code of Civil Procedure, the costs include the following:

filing and decision fees;
notification and postal expenses;
file and other document expenses;
expenses relating to temporary legal protection measures and the issuance of protests, notices and warnings;
discovery, expert and witness fees;
fees paid for documents obtained from official departments;
travel and accommodation expenses of the parties if they are not represented by attorneys;
attorneys' fees; and
other expenses incurred during the proceedings.

The winning party can recover the above costs from the losing party. If the parties are found to be partially successful in their claims, the court will allocate the costs of the proceedings in proportion to their success; in practice, they are usually divided equally.

The winning party will recover only a very limited amount of its attorneys' fees, which is determined by the Union of Turkish Bar Association each year for each type of action. For court actions without a request for compensation, the sum recoverable as attorneys' fees is currently €730. For court actions with a request for compensation, the sum recoverable as attorneys' fees is currently determined as per the following tariff:

Initial TRY 200,000 of the compensation request	16%
Next TRY 200,000 of the compensation request	15%
Next TRY 400,000 of the compensation request	14%
Next TRY 600,000 of the compensation request	11%
Next TRY 800,000 of the compensation request	8%
Next TRY 1 million of the compensation request	5%
Next TRY 1.2 million of the compensation request	3%
Next TRY 1.4 million of the compensation request	2%
Next TRY 5.6 million or more of the compensation request	1%

For instance, if the requested compensation is TRY 5 million and the court fully accepts the compensation claims, the adverse party will pay TRY 346,000 in attorneys' fees. This payment is awarded to the attorneys of the winning party and not the winning party itself.

14.2 Are contingency fee and/or other alternative fee arrangements permitted in your jurisdiction?

Contingency fee and/or other alternative fee arrangements are permitted in Türkiye.

14.3 Is third-party litigation funding permitted in your jurisdiction?

There are no provisions regulating third-party litigation funding and no obstacles to third-party litigation funding. Even if the expenses of a court action are funded by a third party:

that third party cannot be a party to the court action; and
a judgment cannot be rendered in relation to that third party.

The obligations of the parties to a court action include:

payment of the costs arising from the court action; and
observance of the court's decision.

15 Trends and predictions

15.1 How would you describe the current patent litigation landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

No anticipated reforms or developments are expected in the next 12 months.

16 Tips and traps

16.1 What would be your recommendations to parties facing patent litigation in your jurisdiction and what potential pitfalls would you highlight?

According to the precedential decisions of the regional appellate courts, the courts will not grant a preliminary injunction unless there is a court-appointed expert report in the file; but the first expert report may not be received until several months after the action has been filed. This is a long time considering the urgent nature of preliminary injunctions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Patent Litigation Comparative Guide

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