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 the merits, and it only serves to discover and record the evidence that may be relevant to an ongoing or future action on the merits.

It must be emphasised that unlike the US and UK systems, there is no full and frank disclosure procedure under Turkish civil law. In other words, the parties may decide, at their discretion, which documents they will or will not submit to the court; thus, 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 requesting discovery of evidence must have a legal interest in the discovery/determination of the evidence, and it is accepted that a legal interest exists if the evidence is lost, or that it will be difficult to depend on that evidence unless it is immediately revealed.

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 of an enforcement action. However, as per the latest interpretations of the IP courts, Bolar immunity is extended only 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 the merits, it is not blocked by the Bolar exemption, and assists the patent holder to discover the evidence of infringement, beforehand. The courts may also accept ex parte discovery of evidence 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 as to the merits, no appeal mechanism is available. However, the counter-party may oppose the decision of discovery of evidence on the grounds that the conditions under Article 400 have not been met. This objection is examined and concluded by the same court that conducted the discovery of evidence.

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