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Updates from an international team of correspondents who report on recent developments in IP law and practice in their home jurisdictions, as well as strategic issues and those relating to finance, dealmaking and valuation.
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New 28 SEPTEMBER 2022Why compulsory licensing is a blunt instrument in the post-covid landscape
Turkey’s recent compulsory licence decision shines a light on the questionable use of compulsory licence provisions around the world in relation to the pandemic. The creation of the covid vaccine has sparked discussions on IP rights and where the real regulatory focus should be.
24 AUGUST 2022General Assembly of the Court of Appeal reaches milestone decision on patentability of second medical use claims
In ruling on the patentability of second/further medical use patents in Turkey, the court has brought to a close years of debate on the validity of second medical use patents granted by the EPO before the EPC 2000 amendments.
10 AUGUST 2022Bolar-like hurdle for generics
The judgment of the Ankara IP court in a case involving a marketing authorisation application demonstrates that an exemption similar to the so-called Bolar exemption can apply to Gx pharmaceutical companies.
30 MARCH 2022A fairer way to determine royalties in Turkish compulsory licensing
If compulsory licensing is used in Turkey, it is imperative that the individual requirements of each case are considered. This is especially important when it comes to facilitating access to medical treatments for covid-19.
26 JANUARY 2022Istanbul IP Court reaches landmark decision on precautionary injunction
The IP Court’s most recent ruling emphasises the importance of granting a precautionary injunction before the release of a Gx product, to prevent incurable price cuts against pharmaceutical patents.
19 JANUARY 2022Turkish court issues preliminary injunction to prevent infringement of pharmaceutical products
Currently, the Turkish Medicines and Medical Devices Agency does not investigate whether drugs supplied from abroad infringe patent rights. However, a recent case provides useful guidance for the steps to be taken, where such infringement occurs.
12 JANUARY 2022Vaccine patent rights - a scapegoat for inequality?
The unequal dissemination of covid-19 vaccines remains controversial, yet while a proposed IP rights waiver might enhance global access to affordable vaccines, it remains unlikely that it would provide a solution to the unequal rollout.
03 NOVEMBER 2021District court sets valuable precedent on preliminary injunction requests
A district court has gone against the growing practice of rejecting preliminary injunction requests in patent disputes. While the reasoning is that injunctions require a full trial yet, courts have taken to rejecting requests for them without setting a trial date or carrying out any of the relevant examination and evaluation.
13 OCTOBER 2021Warning letters may be more trouble than they are worth: a cautionary tale
While sending a warning letter to perceived infringers is not a pre-condition to enforcing patent rights under Turkish law, it can be a cost-effective and swift way to resolve disputes. However, brand owners should be aware of the potential negative consequences before putting pen to paper.
22 SEPTEMBER 2021Should a lawyer follow the judge’s misdirection?
Judges and lawyers should always act in accordance with the rule of law, as highlighted in a recent preliminary injunction decision involving a disputed patent, where a judge made a momentary mistake and provided incorrect guidance.
12 MAY 2021Are clinical trials excluded from patent protection in Turkey?
Under Turkish case law, clinical trials come under the scope of experimental use of an invention. However, there is a lack of clarity over whether this means that clinical trials of patentable products can be protected by patents.
14 APRIL 2021IP court issues preliminary injunction against drug in Turkey’s named patient programme
The IP court has granted a preliminary injunction to remove a pharmaceutical product from the Foreign Drug List of the Turkish Medicines and Medical Devices Agency. The drug was found to contain an active ingredient that was covered by a company’s patent. This case highlights the fact that the Bolar exemption does not apply to drugs that are part of Turkey’s named patient programme.
20 JANUARY 2021First precautionary injunction granted in Turkey to prevent indirect use of a drug patent
The Istanbul IP Court has handed down its first precautionary injunction for indirect use of a patent. The case, which involves a combination drug patent, sheds much-needed light on Article 86 of the Turkish IP Code.
16 DECEMBER 2020New IP court ruling sets precedent for the EPC’s application in Turkey
The European Patent Convention 138/3 prohibits hurried revocations of European patents at a national level. While Turkish courts previously refused to implement the convention, it looks as if the tide may be turning.
18 NOVEMBER 2020New Code of Civil Procedure extends deadlines in patent litigation
While amendments to Article 281 of the Code of Civil Procedure have been broadly welcomed for offering extensions for the submission of statements that challenge expert reports in patent litigation, many are questioning whether they go far enough.
08 JULY 2020Discovery of evidence and preliminary injunction demands during covid-19
Despite accepting the discovery of evidence demand made by an originator company against a generic pharmaceutical company after an expert panel confirmed that patent infringement had occurred, a Turkish IP court has rejected the originator’s request for a preliminary injunction on the grounds of the ‘Bolar’ exemption – sending conflicting messages to rights holders.
22 APRIL 2020Understanding indirect infringement in Turkish IP practice
Turkish IP law does not explicitly define ‘indirect infringement’, although legislators refer to Article 86 of the Industrial Property Code. A recent case, in which a generic company filed a determination of non-infringement action against an originator company, is the first example of an interpretation of Article 86 for second medical-use claims in Turkish IP practice.
08 APRIL 2020Questionable approach of Turkish IP courts in assessing Bolar exemption
Article 85(3) (c) of the Industrial Property Law excludes marketing authorisation applications from the scope of patent rights. However, the IP courts’ interpretation of this has been disproportionately weighted against patent holders.
18 MARCH 2020Is a minor difference from a patented range enough to win an infringement case?
Recent cases demonstrate that the Turkish IP court’s approach to products that possess a minor difference from the range claimed in a patent is rather rigid and it appears reluctant to consider prosecuting allegedly infringing products based on formula deviations.
06 NOVEMBER 2019Reverting a non-examined patent to an examined patent during court proceedings
A recent case involving two automotive companies has highlighted that third parties that file patent invalidation actions against a non-examined patent should be prepared for a possible request for conversion by the patent owner.
02 OCTOBER 2019Declaration of non-infringement can be rejected in absence of marketing authorisation
Under Article 154 of the IP Law, any person who has legal benefit can file an action to have a court determine that their acts do not infringe IP rights. For many years the IP courts rejected any attempts by patent holders to uphold their rights against Gx or generic pharmaceutical companies where there was a pending generic MA application on the basis that these are exempted from patent rights – the so-called Bolar exemption.
17 JULY 2019Filing an abridged application within terms of RDP does not constitute unfair competition
In a recent case concerning the regulatory data protection term for a drug, the court found that the filing of an abridged marketing authorisation application for a generic drug is a legal right under the licensing regulation of the Ministry of Health; therefore, utilising a legal right does not constitute unfair competition.
26 JUNE 2019IP court decisions cast doubt on preliminary injunctions
It has become common for plaintiffs in an invalidation or determination of non-infringement action to demand a precautionary injunction against a defendant patentee to prevent it from enforcing its rights. However, recent case law suggests that the issue is far from straightforward.
19 JUNE 2019Turkish IP Court issues first pharma damages ruling
The Istanbul Court of Intellectual and Industrial Property has ordered a patentee to pay €333,000 to the manufacturer of a generic pharmaceutical after an injunction was unfairly granted against the manufacturer’s product. However, both parties are appealing the decision – the first in this area.
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