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Protective letters, which are available in some European countries and before the Unified Patent Court (UPC), serve as a "first line of defense" for accused infringers against potential ex-parte provisional measures. There is no doubt that, this protective letter constitutes a highly proactive step for a potential defendant in patent litigation, which is rather unconventional.
In general, protective letters are legal instruments used to safeguard the rights of an individual or organization in specific circumstances—particularly when there is concern about the infringement of intellectual property rights and the risk of an ex-parte preliminary injunction being granted. These letters are typically used as a preventive measure to secure legal standing or to establish a record in the event of a future dispute. Protective letters are particularly significant in patent litigation — especially in the pharmaceutical and biotechnology sectors, where an injunction could prevent the market entry of generic medicines or new technologies, causing substantial financial loss.
By filing such a letter in advance, a potential defendant ensures that the court has access to its arguments before considering any one-sided request from the claimant. This is, of course, particularly important in patent lawsuits concerning products or production methods involving very large investments, especially from a commercial perspective. This is because the potential defendants will be able to continue their business and even strengthen their position in a possible negotiation process. On the other hand, the party taking this proactive step may benefit from creating a positive perception in the court's opinion.
Protective letters are not recognized under Turkish law, as there is no mechanism allowing for the filing of a pre-emptive statement of defense against potential claims by plaintiffs. However, there are certain legal measures and post-decision mechanisms that can be activated either before or following legal action initiated by the previous IP rights holder.
Preliminary Injunctions in Patent Law in Türkiye
For the purpose of evaluating whether mechanisms comparable to protective letters could be introduced, it is essential to first consider the framework of preliminary injunctions under Turkish law, taking into account that the foremost objective of such letters is to prevent the issuance of ex parte preliminary injunctions ("PI").
A preliminary injunction is a form of temporary legal protection that may be granted without requiring the claimant to fully prove the arguments on which the claim is based. Indeed, this legal remedy is of great significance not only in Türkiye but also across all European countries, particularly in patent infringement proceedings, where itoften constitutes a major component of the overall litigation strategy. A PI may be issued where it would otherwise become significantly difficult or impossible to secure legal rights due to changes in the current situation, or where a delay would likely cause serious harm. A PI can be requested either from the court handling the main case or from a competent court prior to filing the lawsuit.
The legal framework and criteria for injunctions in Türkiye are governed by the Civil Procedural Law No. 6100 ("CPL") and the Industrial Property Code No. 6769 ("IP Law"). These laws provide that the requesting party must prove to the Court either:
- That irreparable harm will arise if the injunction is not granted, or
- That the desired outcome of the main lawsuit would be unlikely without the injunction.
Because of the urgency of PI requests, the evidentiary threshold is lower—meaning the claimant only needs to provide approximate (prima facie) proof.
Although the legal framework allows for broad judicial discretion—including the granting of ex-parte PIs or those contingent on security deposits—in practice, Turkish IP courts are generally reluctant to issue ex parte injunctions in patent matters. Patent disputes are considered highly technical and economically significant, and courts tend to hear the defendant's arguments before granting an injunction.
As a result, ex-parte PIs are rare, though still legally possible in clear-cut infringement cases supported by strong private expert opinions.
Available Measures Against PI Orders
The following remedies may be pursued against an ex-parte PI or as preventive measures:
- Objecting to the Decision
It is possible to object to a PI within one week, by applying to the same court.
If the opposing party is present during the execution of the PI, they may object—within one week—on grounds such as the conditions of the PI, the jurisdiction of the court, or the security ordered to be deposited by the court. If they are not present, the one-week period begins from the date of notification of the execution minutes (of the PI).
However, unless otherwise ordered, filing an objection does not suspend the enforcement of the PI until the court decides to revoke it.
After the objection is submitted, the court will invite the parties for a hearing. If the parties do not attend, the court will decide based on the facts in the file. It may choose to modify or lift the injunction.
A decision rendered on the objection may be appealed before the Regional Court of Appeal, although this appeal also does not suspend execution of the PI.
To strengthen the objection and provide sufficient grounds for the PI to be revoked, parties anticipating a potential injunction may obtain a private expert report in advance. Given the inherent technical nature of intellectual and industrial property law —particularly in patent disputes—injunction assessments that are expected to be conducted within a short time frame may require specialized input. In this context, a well-prepared technical opinion can play a critically important role in guiding the judge's evaluation.
- Applying for the Revocation of the Injunction through the Deposit of Security
If the party subject to a PI provides security acceptable to the court, the court may, at its discretion, modify or revoke the injunction. The court determines the amount and type of security required based on the specifics of the case.
Like an objection, this request must be submitted within one week of becoming aware of the PI, with a petition explaining the reasons and attaching supporting evidence. Notably, decisions made regarding the payment of a countersecurity are final and cannot be appealed.
- Filing an Action for Determination of Non-Infringement
As noted above, although not as early or proactive as a protective letter, objecting to PI decisions and revoking a granted PI by depositing security may produce results like those achieved through protective letters. Another avenue under Turkish law that serves an almost identical purpose is to file a declaratory action for non-infringement, and potentially to seek a PI in the course of such action.
An action for the determination of non-infringement is a legal remedy available to third parties to establish that the industrial property right of the patent holder has not been infringed. This action enables the right holder to contest unfounded allegations, protect its investments, and prevent damage to its reputation.
Before doing so, the interested party may ask the patent owner to state whether their activities constitute infringement. If no response is received within one month, or the response is not accepted, the party may proceed with the lawsuit. Notifying the patent owner is not a prerequisite to file for non-infringement.
In addition to the deterrent effect that a non-infringement action can have on its own, a PI can also be sought to prevent the enforcement of the patent holder's rights against the plaintiff of the non-infringement action. Although such a PI is difficult to obtain, depending on the strength of the plaintiff's claims and evidence, it may be granted.
However, it is important to note that this lawsuit cannot be filed by a person against whom an infringement lawsuit has been filed.
Conclusion
Although Turkish law does not provide for an exact equivalent of protective letters, there are legal remedies that can largely achieve the same result. However, when compared to protective letters, these remedies entail certain challenges of their own.
Even though it is possible to file an action for the determination of non-infringement and take a proactive stance against possible PIs that could be granted in patent infringement proceedings, the post-decision mechanisms that can be resorted against the PI ruling may only be activated within a one week window and most of the time, objection itself does not stop the execution of the PI.
On the other hand, to strengthen the defense against a potential PI—even if no non-infringement action is filed—it is advisable to obtain a private expert report in advance. In addition, if the party believes that its activities do not constitute infringement, it may file an action for the determination of non-infringement or initiate negotiations with the patent holder for a potential co-existence arrangement.
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.
