Turning Complexity into Control: The Role of Court-Appointed Experts in Turkish Patent Disputes

Patent litigation represents one of the most complex areas of intellectual property law, where technical depth and legal reasoning must work in harmony. In Türkiye, these cases are heard by specialized intellectual property courts rather than general civil courts. Each case is tried by a single judge, who decides both the legal and technical issues. Since these courts have no technical advisory staff and judges have no scientific background, they rely heavily on court-appointed experts to evaluate the technical aspects of a dispute.

As a result, expert reports are not merely supportive tools but often form the backbone of the court’s assessment and play a decisive role in the final judgment. Understanding how this system operates in practice, what challenges arise, and how parties can ensure reliable expert input is therefore essential for anyone involved in patent litigation in Türkiye.

Panel Composition

In most patent cases, courts appoint a panel of three to five experts to ensure the assessment reflects multidisciplinary and collective expertise. The typical panel includes one patent attorney and two academics in the relevant technical field. Where multiple technical fields are involved, courts may appoint additional technical experts to the panel. Legal professionals are occasionally included, but this is rare, as panels are primarily built around technical expertise and patent practice.

Challenges in Finding Experts

Experts are most often selected from the official Judicial Expert List. However, because patent disputes require a combination of technical knowledge and practical experience with patent law, it is not always possible to find suitable candidates from this list. Experts with technical background, who also possess a strong command of patent law, and preferably have passed the European Qualifying Examination (EQE), are both rare and prone to conflicts of interest. For example, if an expert has previously worked with one of the parties, was employed at their legal representative’s firm, or has other business relationships with them, they cannot be appointed. As a result, filling the patent attorney role on the panel is often one of the most difficult stages of the case.

Similar difficulties arise when appointing academic experts. In certain technical fields, there are almost no eligible experts listed. In such cases, courts may appoint external experts after consulting with the parties. Although this mechanism is used infrequently, it provides an important degree of flexibility that can help address the shortage of qualified experts in certain technical fields.

Objections from the parties can further complicate the process. A court may appoint a panel, and one or more members may be challenged by the parties. If the objection is accepted, a replacement must be found which can be a struggle due to the limited pool. In some cases, this process may be repeated several times. Ultimately, forming the expert panel becomes not just a technical necessity, but also a strategic step with major implications for the course of the case

Timing of Appointment and Scope of Review

An expert is generally appointed after the exchange of petitions has been completed and the parties have submitted their evidence. At this point, the scope of the technical dispute becomes clear. In practice, expert appointment may occur just after the first hearing or later in the process; for example, after an on-site inspection or when a new technical allegation arises. In most cases, if the first expert report is found inadequate or is strongly contested by the parties, a second or even a third panel may be appointed.

Once the panel is appointed, the court usually invites the parties to submit written questions that they wish the experts to address in their report. These questions, approved and transmitted by the court serve to define the scope of the technical assessment and ensure that the experts focus on the key issues in dispute. This mechanism can play a crucial role in guiding the panel’s analysis and improving the clarity and relevance of the report.

The Panel’s Role: A Substantiated Technical Opinion

The expert panel’s role is to provide the court with a substantiated technical opinion on the issues in dispute, allowing the judge to form a decision on matters beyond their own expertise. The expectation is that the panel’s findings be technically sound, clearly reasoned, and internally consistent. Panels are also expected to consider all claims and evidence submitted by the parties in reaching their opinion.

Heavy Reliance on Expert Reports

The court treats expert reports as an essential aid to its decision-making. Since it lacks the technical competence to independently resolve complex patent disputes, it often relies heavily on the findings of the appointed experts. The panel’s technical reasoning and conclusions are therefore among the most influential elements guiding the outcome of the case. This heavy reliance on expert reports also stems from a wellestablished precedent of the Court of Cassation, which has repeatedly held that judges may not reach conclusions on technical matters without expert input.

Common Weaknesses in Expert Reports

One of the most persistent challenges in Turkish patent litigation is the quality of expert reports. Panels may fail to grasp both the technical and legal dimensions of the dispute, particularly in complex cases with extensive documentation. This often results in serious errors such as misinterpretation of claims, failure to establish a proper comparison methodology, or overlooking critical technical details.

A significant factor behind such weaknesses lies in the composition of the panel itself. The inclusion of patent attorneys who lack litigation experience is not uncommon. In Türkiye, becoming a registered patent attorney does not require a technical background, and some appointees may lack the expertise to assess complex technologies. Others may hold the European Patent Attorney (EPA) title through grandfathering, without having passed the EQE, or may have worked exclusively in prosecution with no exposure to court practice.

Such individuals may be unfamiliar with litigation procedures, judicial expectations, or how patent law terminology is applied in a courtroom setting. When a panel lacks this combined understanding of technical content and litigation context, the resulting report may fall short in both rigor and relevance, weakening its value as a tool for judicial decision-making.

In practice, parties and their counsel play a key role in maintaining the quality of expert evidence. Once the panel is appointed, it is common for attorneys to review each expert’s background to assess whether they possess the appropriate technical and procedural expertise for the case. If any member appears unsuitable, not only due to potential conflicts of interest but also because of lack of relevant experience or specialization, the parties may formally object to their appointment. This early scrutiny often increases the likelihood that the final report will be prepared by genuinely qualified experts, improving both the accuracy and credibility of the court’s technical findings.

Supplementary Reports and New Panel Appointments

A supplementary report is typically requested when the court determines that one or more questions have not been adequately answered in the original report, or when parties raise valid objections in that respect. Supplementary reports are usually drafted by the same panel; however, in some instances, a new member may be added. If a party claims that the first report contains serious inconsistencies, obvious mistakes, or methodological flaws, and the court finds these objections well-grounded, a new panel may be appointed. In practice, two or three reports are obtained in most cases. These reports coexist in the case file; although the court may not explicitly state a preference, judgments often reflect the position taken by the majority. For example, if two reports reach the same conclusion, the court may rule accordingly without commissioning a third, or if three reports are available and two are aligned, the decision will likely follow that direction.

Limited Use of Oral Testimony and Cross-Examination Tools

In Turkish patent litigation, it is extremely rare for experts to be summoned to court for oral testimony. The Civil Procedure Code (HMK), however, introduced mechanisms such as cross-examination, allowing parties to question experts directly with the aim of increasing transparency and improving the quality of expert evidence. These tools, when applied, can significantly reduce misunderstandings and strengthen the court’s technical assessment. Yet, in practice, they remain largely underused. Although a few courts have implemented them successfully, written proceedings continue to dominate, leaving limited room for direct interaction with experts. As a result, the written report often carries substantial weight in shaping the final judgment.

Inspections in Infringement Cases

However, in infringement cases where a product must be physically examined, an “expert inspection” may be conducted prior to report drafting. This involves direct evaluation of the allegedly infringing product alongside technical evidence in the file. Parties are usually present and may be invited to explain aspects of the product during the inspection. While this provides the panel with a hands-on understanding of the subject matter, it still does not amount to an interactive hearing, no adversarial questioning or verbal statements by the experts are expected in such settings.

Problematic Reports and Consequences

Some reports are not only inadequate but may inadvertently obstruct the progress of the case. For instance, in one matter, the expert panel reproduced, without independent analysis, judgment issued by a foreign court on the same patent and simply adopted its conclusion. While rare, such incidents cause serious complications. The case is delayed, and because no original technical analysis was conducted, a new report becomes necessary. Moreover, such flaws may not be immediately apparent to the court, resulting in wasted time and higher litigation costs for the parties.

Delays in Report Submission

Expert panels are typically given a few months to submit their report. In practice, however, these timelines are rarely met. Academic calendars, workload, and coordination issues with counsel often lead to substantial delays. In some cases, reports have been delayed for nearly a year, halting all progress in the case. These delays not only defer the final decision but also deepen uncertainty for the parties and erode confidence in the predictability of the system.

Conclusion: From Fragility to Predictability

Expert reports remain both the cornerstone and the most delicate component of patent litigation in Türkiye. Their preparation, structure, and reasoning often determine not only the technical clarity of a case but also its legal outcome. While the system faces structural challenges, such as the limited pool of qualified experts, variations in report quality, and procedural delays, it also provides mechanisms that, when used carefully, can enhance balance and reliability.

Predictability in such a framework does not emerge from the system itself but from how effectively it is navigated. Precision in expert selection, clarity in written questions, and disciplined management of procedural steps are what transform fragility into control. In the end, the strength and credibility of judicial outcomes depend on the quality of the expert foundation on which they rest.