One of the most important temporary protection measures regulated by Turkish law is the determination of evidence. The implementation of determination of evidence, which is regulated in Articles 400 et seq. of the Code of Civil Procedure No. 6100 and is subject to simple legal procedure, may be requested for the purpose of making a discovery, obtaining an expert examination or taking witness statements in order to determine facts that have yet to be examined in a pending action or that may be raised in a future action.
The most important condition for requesting the determination of evidence is the existence of legal interest. Pursuant to the provision in the Code of Civil Procedure, legal interest is deemed to exist if it is likely that the evidence will be lost or significantly difficult to assert if it is not immediately identified.
As it can be understood from the provision of the law concerning the determination of evidence, the purpose of the article is essentially to ensure that the evidence is secured before the action on merits is filed. If the nature of the dispute requires, the evidence obtained within the scope of determination may be examined by an expert appointed by the judge. The report to be prepared by experts following their examination may also be considered as important evidence for the main action.
Especially in cases where it is imperative for the effective and timely protection of the rights of the claimant, for example where there may be a risk of elimination of evidence by the natural or legal person against whom the evidence is to be collected if they become aware of determination of evidence, it is also possible for the judge to rule for ex parte determination of evidence, so that the determination of probable evidence can be conducted securely.
Determination of evidence, as in many areas of law, is a tool of great importance in patent law in terms of determining evidence that will impact upon the chance of success in action on merits. During the period of patent protection, which is granted to patent right holders for a limited period of time, the determination of the evidence of infringing activities at the right time and in the correct way plays a decisive role in the determination of patent infringement and compensation cases to be filed, and especially for the actions to be filed after the acts of infringement have ceased.
For example, in pharmaceutical patents, the determination of whether generic medicinal products suspected of infringing patents protecting the original product are indeed covered by the patent rights before filing the main action can only be made through the determination of evidence. However, the marketing authorization dossiers of the generic products comprising aspects of the patent before the Turkish Medicines and Medical Devices Agency are confidential and can only be accessed as a result of a Court decision.
In addition, the practice of determination of evidence plays a significant role in the protection of patent rights of innovative companies that have a patent portfolio and carry out R&D activities in telecommunications, electrical appliances, chemistry, the automotive sector and a variety of other sectors.
As patent rights are protected for a limited period of time, in cases where the patent right holder is aware of infringing acts shortly before the expiry of the patent protection period or in cases where the infringement is not continuous, it is only possible to determine whether there was infringement during the patent protection period, or if the products produced or the processes used infringe the patent rights by means of determination of evidence.
Hence, in regard to requests for the determination of evidence based on patent rights, which generally require a technical examination, it should be emphasized that it is essential to submit the necessary requests to the competent courts for the appropriate preservation and testing of the evidence in order to conduct a sound examination.
On the other hand, determination of evidence comprises a number of difficulties. The party against whom the evidence will be determined may try to prevent the officials from fulfilling their duty to determine evidence, and may display a resistance to the judge, attorneys of the plaintiff or experts so that the products or processes subject to the determination cannot be carried out. In such cases, it is extremely important that the judges and attorneys take all necessary measures to achieve the purpose of determination of evidence and, if necessary, rely on the services of law enforcement agencies.
A recent decision for ex parte determination of evidence has enabled an innovator company, which became aware of patent infringement one month before the expiry of the patent protection period, to seize the infringing products in the production facility of the company against which the determination was made while the patent protection period was still in force, for reasons concerning a future damages lawsuit. Within the scope of this file, it was ensured that experts could collect evidence and information regarding infringing acts by taking into account the nature of the evidence, carrying out the necessary analyzes and considering the storage conditions of the products.
This decision is an example of the importance of prompt and fair assessment by the judges of the civil courts for intellectual and industrial property rights regarding the interests of the related patent holders who file requests for the ex parte determination of evidence.