Turkey: Patent Rights Under Industrial Property Law

Introduction

A patent is a protection granted to an invention that meets certain conditions. Patent protection is regulated under Article 82 ff. of Industrial Property Law No. 6769, entered into force on 10 January 2017 ("IPL"). Decree Law numbered 551 concerning Protection of Patent Rights ("FormerDL") is abolished through enforcement of the IPL.

The IPL introduces certain amendments to patent rights, as well as other industrial property rights. Along with the shortening of terms within which to submit claims and applications, the system granting patent rights without conducting an investigation is repealed through the new amendments to the IPL. Patent rights under the IPL are examined in this newsletter article, including the latest amendments.

Subject of Patent Rights and Patentability Criteria

Patent rights mean a limited monopoly right in exchange for disclosure of technical information1. There are two options with respect to inventions. The first option is to use technical information without disclosing the same, and to protect the information in relation to the invention as a trade secret. The second option is to benefit from patent protection through disclosure of the details of the invention.

Patents encourage companies to make the necessary investments for innovation, and provide the incentive for individuals and companies to devote resources to research and development2. An invention constitutes the subject of a patent right. The term invention is not defined under the IPL, but it may be defined as a solution with regard to a technical area3. Although the IPL does not define the term, 'invention', it does foresee certain criteria for patentable inventions.

The first criteria foreseen in the IPL is novelty. Accordingly, inventions surpassing the state of the art are deemed as new. On the application date, all information known anywhere in the world, presented verbally or in writing, and which is accessible by society, is included in the term, 'state of the art.'

The condition of an inventive step is defined as an "invention that is not obvious to the expert of the related technical area, and is deemed as including an inventive step."

The third criteria of patentability, applicable to industry, means applicable in an industry as producible or usable in any given field of industry, including agriculture. Industry fields are to be interpreted widely.

Inventions that meet the explained criteria are deemed patentable, and through registration upon the invention owner's request, it may benefit from patent protection for twenty years.

Since the public interest component is dominant for the utilization of inventions, patent rights are limited in various ways. As a part of time constraints of patents, a patent right is granted for twenty years and cannot be renewed. The time constraint of patent rights is based upon public interest. Since the crux of a patent right is invention, prevention of technological development, indefinitely, is not deemed to be convenient.

The second limitation occurs in compulsory licensing. Pursuant to Article 129 of the IPL, in the following situations, compulsory licenses may be granted:

  • Non-use of patent;
  • Connection of patent subjects;
  • Existence of public interest,
  • Exportation of medical products due to health issues in foreign countries,
  • Impossibility of breeder to develop a new plant variety without violating an initial patent right; or
  • Activities preventing, abusing, or limiting competition of the owner's patent protection.

Since, through the amendment system granting patent rights without examination is repealed, the patent-granting procedure, including examination, will be examined below under the "National Application" section.

Patent types are differentiated between each other, and are identified according to subject of the relative invention, as the process and product patents.

Process Patent

Technical information constituting a product or a result, or causing these to be constituted, is the subject of utility patents4. Within this concept, protection granted to utility patents is essentially similar to the protection of product patents, and these two types differ as to their subjects.

Product Patents

Inventions, in other words, solutions that are subject to product patents formulate as products: such as a machine, a medicine or a chemical5.

Patent Application

Similar to the FormerDL, the IPL also includes regulations concerning patents to be obtained pursuant to international treaties.

Accordingly, the national patent application and international applications will be examined, separately.

National Application

The national patent application is comprised of the following:

  • Application,
  • Procedural examination,
  • Request for investigation, and investigation,
  • Publication,
  • Patent decision,
  • Third party claims, and
  • Finalization of patent decision.

Patent Cooperation Treaty

The Patent Cooperation Treaty ("PCT") assists applicants in seeking patent protection, internationally, for their inventions, and assists patent offices with their patent-granting decisions. By filing one international patent application under the PCT, applicants can simultaneously seek protection for an invention in 126 countries, including the United States of America, the United Kingdom, France, Saudi Arabia, and Kuwait.

Application under the PCT may be initiated either from the national application offices of the countries that are party to the PCT or Word Intellectual Property Organization Offices. Following the application, an international examination report will be prepared and international publication will be made. Applicants may secure patent protection in requested countries that are party to the PCT, following finalization of the application.

Reference of the PCT is presented under Article 83/3(a) of the IPL.

European Patent Application

Unlike the PCT, the European Patent application not only facilities the application process, but also grants international protection. The application process includes similar stages as the explained national process. Accordingly, following the application, a procedural examination is conducted, an examination report is issued, and the application is published. Following the patent decision, patent protection may be ensured in various countries through validation.

The reference of European Patents is presented under Article 83/3(b) of the IPL.

Scope of Patent Rights

Pursuant to Article 85/2, a patent owner is entitled to prevent the following unpermitted activities of third parties:

  • Production, sale, use, or importation of a product that is subject to a patent, or hold the same in possession for purposes other than for personal needs;
  • Utilization of a process that is subject to a patent;
  • To offer utilization of the process, subject to a patent by third parties to others whereby the use of which is known, or should be known, to be prohibited;
  • The sale, utilization, importation or holding in possession, for any purpose other than for personal needs of products, directly produced through the patented process.

Termination of Patent Rights

Patent rights terminate in the event of (i) invalidity decision, (ii) expiration of term of the patent right of twenty years, and (iii) non-payment of annual fees concerning patent rights.

An invalidity decision is given by the relative court in the following situations:

  • Failure to meet patentability criteria of the patent subject;
  • Failure to explain the invention sufficiently in application documentation;
  • The definition of the subject patent expands beyond that as set out in the initial application;
  • If it is proved that the patent right owner is not entitled to request the patent right;
  • If the protection of the patent is exceeded.

Conclusion

Similar to other industrial property rights, through the IPL, various amendments are introduced concerning patent rights. Accordingly, the patent process without examination is repealed, the objection right following the patent decision is granted, certain rights are granted to inventors studying in universities, and patent processes are facilitated.

Through explained amendments, the IPL aims to align itself with European legislation. Please refer to our article for detailed information on regulations concerning inventions of employees, entitled 'Intellectual Property Rights of Employers6'.

Footnotes

[1] Güneş, İlhami. Patent Hakkı ve Bu Hakkın Komşu Kavram ve Hukuki Yollarla İlişkileri, p.1. http://www.yayin.adalet.gov.tr/adaletdergisi/48.sayi/8_ilhami_gunes.pdf

[2] https://ec.europa.eu/growth/industry/intellectual-property/patents_en Access date: 25.05.2017.

[3] Tekinalp, Ünal. Fikri Mülkiyet Hukuku, 2012, p.530.

[4] Saraç, Tahir. "Patentten Doğan Hakka Tecavüz ve Hakkın Korunması", 2003, p. 73.

[5] Tekinalp, Ünal. Fikri Mülkiyet Hukuku, 2012, p.596.

[6] http://www.erdem-erdem.av.tr/publications/newsletter/intellectual-property-rights-of-the-employers/ Access date: 25.05.2017.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.