Gün + Partners - Turkey
The Code on the Amendment of the Code of Civil Procedure and Some Other Laws has recently entered into force in Turkey. It focuses on the principle of the procedural economy and accelerating judicial processes. One of the amendments affects Article 281 of the Code of Civil Procedure, as it now allows judges to grant an additional two weeks in which parties to a case can submit statements that challenge court expert reports. This will have an impact on patent-related disputes in Turkey, as it is necessary to have an expert present, whose reports generally influence the outcome decision.
The following sentence has been added to the first paragraph of Article 281, which regulates objections to expert reports as follows:
If it is very difficult or impossible to prepare a statement countering the expert report, or it requires special or technical preparatory work, an extension of time may be granted to the party who petitions the court within this period, on the understanding that the extension period starts from expiration of the deadline for submissions, the extension will be granted only once, and the period granted does not exceed two weeks.
However, the timeframe for parties to submit their statements and objections can be extended to a maximum of one month, as there have been complaints about the two-week extension being insufficient in practice to examine the expert report and prepare counter-statements.
The wording of the amendment appears similar to that of Article 127 of the same code:
“A defendant may submit a petition in response within two weeks from the delivery of a plaintiff’s petition. However, if submission of a response petition within such period is difficult or impossible, a time extension (not exceeding one month) may be granted by the court, one time only, upon the timely request of the defendant.”
However, there are two important differences. First, “the requirement for special or technical preparatory work” has been introduced as a condition to extend the time in which to submit an objection petition to the expert report as an alternative to the condition that it is too difficult or impossible to prepare counter-statements within a two-week period.
In cases where Article 127 is considered, a time extension can be granted when comprehensive preparation is required to prepare a response; (ie, it may be necessary to check accounts, balance sheets, books or attend at a warehouse). Specific to patent proceedings, where technical examination is required independently of the scope of the invention claimed under the disputed patent and the examination should be based on comprehensive research, an extension is often requested, which the courts have accepted. Accordingly, if the subject matter of an action requires special or technical preparatory work, submitting the petition within the given deadline may be difficult or impossible. This extension is already provided under Article 127 in patent litigation.
With regard to filing statements and objections to an expert report, a separate consideration is that the subject matter of the lawsuit requires special or technical preparatory work. Since this eliminates any uncertainty in patent invalidation actions, as patent law proceedings require technical examination, an extension of time will be granted on the plaintiff’s request. Thus, it is thought that this kind of extension will become uniform practice in patent proceedings.
The second difference between Articles 127 and 281 is that the latter states that extensions of up to one month may be granted in which to submit responses to an action and up to two weeks to submit statements in rebuttal to the expert report. Many are of the opinion that even though the legislature has correctly identified the problem and attempted to offer a solution, the extension of a maximum of two weeks renders this solution inadequate.
Expert reports are, on the whole, more comprehensive and technical, and thus considerably longer than petitions. It is therefore more difficult to understand them since they contain no legal assessment. However, in practice, the court cannot hand down a decision that is contrary to the expert reports, nor can it reach a decision based on a single report without answering the parties’ objections. These petitions refuting the expert reports help to determine the good faith of the case. In this regard, relevant petitions may play a role that is more effective and important than the response and replication petitions submitted during the exchange of petitions. As such, while a period of up to one month is granted in which to submit responses to an action, the two-week extension period in which to submit objections to the expert report is insufficient for a sound and comprehensive assessment, and for the parties to properly exercise their right to be heard.