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Legislative Implementation of Flexibilities - Türkiye

Title:Articles 125 to 128 of the Decree Law No.551 pertaining to the protection of patent rights of 24/06/1995 as last amended by the Decision of the Constitutional Court No. 2009/19 of 5/02/2009
Field of IP:Patents
Type of flexibility:Security exceptions
Summary table:PDF

Provisions of Law

SECTION TWO

Secret Patent

Term and Conditions for keeping under secrecy

Article 125:

The contents of an application for patent shall be kept secret, for a time-period of two months, as from the date of filing of the application unless the Institute decides to disclose same earlier.

The Institute may extend the time-period during which the application for patent is kept under secrecy up to five months as from the date of filing of the application, if it comes to consider that the invention, subject matter of the application, is of importance for national defense. The Institute shall notify the situation in writing to the applicant and shall instantly inform the Ministry of National Defense by forwarding them the copy of the application.

For the purposes mentioned under the paragraphs one and two of this present Article, the Institute and the Ministry of National Defense shall cooperate and shall determine the inventions held to be of importance for national defense. The Ministry of National Defense has authority to examine, beforehand, all applications for patent, under the condition to respect the obligation to secrecy.

When national defense interests are of question, the Ministry of National Defense, by request made (in writing) before the expiry of the said period of 5 months, may ask the Institute that the application for patent be prosecuted under secrecy and that the applicant be kept informed of such situation.

Where the application for patent or the patent is kept under secrecy, the applicant or the patentee shall have to shun such acts as might convey information about the contents of the invention to unauthorized persons.

The Ministry of National Defense, upon the request of the applicant or the patentee may allow that the subject matter of the application for patent or of the patent be used, in part or in whole, under the conditions to be laid down by the Ministry of National Defense.

Register for Secret Patents, Extension of Secrecy Period and Rescinding Secrecy

Article 126:

The patent issued under the rule of secrecy is entered in the, secretly held, Register for Secret Patents, and shall be kept under secrecy for the length of one year as from the date of issue. The secrecy period may be extended by period(s) of one year. The patentee shall be kept informed in case of such extention.

Yearly extension of secrecy period shall not be implemented during war and until one year after cease fire.

Upon the authorization of the Ministry of National Defense, the Institute, may, at any time, rescind, the secrecy under which the patent or the application for patent has been placed.

Annuities and Compensation regarding Patents under Secrecy

Article 127:

The payment of the yearly patent annuities shall not be mandatory, for secret patents.

The right holder of patent may claim compensation from the State for the length of the time-period during which the patent is kept under secrecy. The compensation shall be claimed, at the end of each (calendar) year, during which the patent has remained under secrecy, for the said year. If no agreement is reached on the amount of compensation, the said amount shall be determined by the court. The compensation shall be calculated taking into consideration the importance of the invention and the income estimate in case the right holder of patent can make free use of it.

Where the invention, subject matter of the secret patent is disclosed by a fault on the part of the patentee, no right to claim compensation shall arise.

Obtention of authorization to file an Application in a foreign country for Patents under Secrecy

Article 128:

Where an invention made in Turkey is subject to the provision of Article 125, no application for patent can be filed, in any foreign country, for the said invention, without the Institute's permission and before the expiry of a time-period of two months as from the date of filing of the application for patent before the Institute. Permission to file an application in any foreign country shall not be issued without the specific authorization of the Ministry of National Defense.

Where the inventor is domiciled in Turkey, until proof to the contrary, the invention shall be deemed to have been realized in Turkey.

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