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Legislative Implementation of Flexibilities - Türkiye

Title:Articles 54-59, 62 and 63 of the Decree-Law No. 551 on the Protection of Patent Rights of 27/06/1995 as last amended by Law No. 4128 of 7/11/1995
Field of IP:Patents
Type of flexibility:Substantive examination
Summary table:PDF

Provisions of Law

Examination as to Form

54. When the filing date of an application has become definite, the Institute shall examine the application for compliance with the requirements of form set forth in Articles 42 to 52 and in the Regulations.

The compliance of the specification, claims and drawing with the patentability requirements shall not fall within the scope of this examination. The Institute shall examine the subject matter of the application, in the light of Articles 6 and 10 of this Decree-Law, to determine whether or not it constitutes a patentable invention and is applicable in industry. The Institute shall, after having heard the applicant, reject the application, stating the reasons for its decision, when the invention in respect of which it is filed obviously and indisputably lacks novelty and industrial applicability.

Where the examination finding is that the application has defects of form within the meaning of Article 53, or that its subject matter is not a patentable invention, the examination procedure shall be suspended and the applicant requested to remedy the defects or communicate his objections to the Institute within the period prescribed by the Regulations.

In the course of this procedure, the applicant may amend the claims or divide the application into two or more divisional applications.

The Institute shall reject the application entirely or in part when it does not find acceptable the objections raised against its decision that the subject matter of the application is not a patentable invention, or when a reported deficiency has not been remedied pursuant to the conditions and requirements of form laid down in the Regulations.

Where the examination conducted by the Institute under this Article shows that there is no deficiency as to form, or when any such deficiency has been duly remedied and completed pursuant to the requirements of this Decree-Law, the Institute shall inform the applicant that the request for the conduct of a state-of-the-art search, if not filed earlier, is to be filed within the time limit specified in Article 56.

Publication of the Application

55. The application shall be open to public inspection on publication as provided in the Regulations after 18 months have elapsed from the filing date of the application, or from the date of any priority claimed. The application shall be published after the completion by the Institute of the examination for compliance with formal requirements under Article 54 and after the filing under Article 56 of the request for the conduct of a state-of-the-art search.

Applications shall be published periodically in the relevant Bulletin, with all their particulars, in the form and subject to the conditions laid down in the Regulations.

At the request of the applicant, the application shall be published as provided in this Article even when the period of 18 months mentioned in the first paragraph thereof has not expired.

Request for the Conduct of the State-of-the-Art Search and Payment of the Search Fee

56. Within 15 months from the filing date of the application, the applicant shall file a request with the Institute for the conduct of a search of the state of the art and shall pay the appropriate fee.

Where priority is claimed, the said period shall be calculated from the date of priority.

Where the period prescribed in the first paragraph of this Article has already expired when the notification under the sixth paragraph of Article 54 is made, the applicant shall file the request for the conduct of the state-of-the-art search within the month following such notification.

Where the applicant does not file the request for the conduct of the state-of-the-art search as provided in this Article, the application shall be deemed withdrawn.

The conduct of the state-of-the-art search in respect of an application for a patent of addition may only be requested when the request is filed together with the application for the main patent, or when a search has already been conducted or requested in relation to previous applications for patents of addition. The provisions of the first and fourth paragraphs of this Article shall apply also to patents of addition.

Drawing up, Notification and Publication of the State-of-the-Art Search Report

57. The Institute shall conduct the state-of-the-art search after having examined the application in accordance with the provisions of Article 54, and on receipt of the request, filed by the applicant under Article 56, for the conduct of the state-of-the-art search.

The search report shall include the elements of the state of the art to be considered in the assessment of the novelty and inventive step characteristics of the invention forming the subject matter of the application.

The search report shall be drawn up, in the light of the specification, the drawings if any and the claims by the Institute or by the search authority designated by the Institute from among internationally recognized search authorities.

The search report shall be notified to the applicant after it has been drawn up. The copies of the reference patents and publications cited in the search report shall be sent to the applicant together with the report.

Following its notification to the applicant, the search report shall be published by the Institute after the three-month period accorded to the applicant under Article 59 has elapsed.

Of the systems for the grant of patents with or without substantive examination, the one that the applicant has chosen shall be published in the Bulletin in which the state-of-the-art search report is published.

If, when the search report is drawn up, the patent application has not yet been published, the search report shall be published together with the patent application.

Impossibility of Drawing up Search Report for Reasons of Deficiency

58. Where lack of sufficient explicitness in the description or claims prevents the drawing up of the search report on the state of the art either in full or in part, the Institute shall ask the applicant to remedy the deficiency. Where the deficiency is not remedied by the applicant by the time limit laid down in the Regulations, the Institute shall notify the applicant of its decision that the search report cannot be drawn up, and shall inform him of his right to object. In the case of partial deficiency, the search report shall be drawn up for those claims that are sufficiently explicit.

Choice of the Substantive Examination System

59. The applicant shall declare to the Institute, within three months following the notification to him of the search report, that he has opted for the system of patent grant with substantive examination, in order that the Institute may examine the application in relation to the patentability requirements pursuant to the provisions of Article 62. Where no such declaration is made by the said time limit, the system of patent grant without substantive examination shall be deemed to have been chosen.

Section IV

System of Patent Grant with Substantive Examination

Patent Grant with Substantive Examination

62. The provisions of Articles 42 to 58 on the filing of the patent application and the requirements therefor and on the examination of the application as to form shall apply also to the system of patent grant with substantive examination.

Within six months following the publication of the state-of-the-art search report, third parties may, in the form laid down in the Regulations, file objections to the grant of the patent, alleging non-compliance with the patentability requirements, including lack of novelty or inventive step, or the inadequacy of the description. Documentary evidence in support of the allegation shall be enclosed with the objections, which shall be made in writing.

Within six months following the publication of the state-of-the-art search report, the applicant wishing to obtain a patent with substantive examination shall request the Institute to conduct the examination to determine whether the subject matter of the invention is comprehensively described and whether the invention is novel and involves an inventive step. The conduct of the examination shall be subject to prior expiry of the period of six months for third-party objections and payment of the examination fee provided for in the Regulations. The examination fee may be paid at any time during the period specified in the second paragraph of this Article.

When objections are raised by third parties under the second paragraph of this Article, all such objections and the evidence in support of them shall be immediately notified to the applicant. The applicant may respond to the objections raised within three months following the expiry of the period allowed for raising objections, or within the period extending such term for three additional months if requested, or may submit reasons in support of his response with a view to removing the objections raised, or again if he deems it necessary, may amend the description, the drawings and the claims.

The Institute shall initiate the examination for compliance with the patentability requirements after the expiry of the time limit specified in the fourth paragraph of this Article. Failure by the applicant to respond to the objections raised within the prescribed time limit shall not delay the initiation of the examination.

After having examined the application, the Institute shall decide on whether the application has deficiencies or meets the patentability requirements. It shall substantiate its decision by citing the grounds therefor. The Institute shall confine its examination to the content of the claims.

The Institute shall communicate to the applicant the examination report that it has drawn up on whether the application has deficiencies or does not meet the patentability requirements, citing the grounds on which it is based, and shall allow the applicant six months within which to rectify the deficiency, amend the claims or object to the report.

The applicant may submit substantiated observations with a view to removing the unfavorable opinions expressed by the Institute in its examination report, and may amend the application if he deems it necessary.

The Institute shall examine the observations made by the applicant and any amendments made to the application. Where the Institute decides that the adverse findings of the examination report are to be upheld, it shall notify the applicant accordingly, stating the grounds therefor, and shall allow the applicant a period of three months within which to submit his opinions to the contrary.

The applicant may, at that stage of the examination, submit his observations with a view to overcoming the adverse findings, and may amend the application if he deems it necessary.

The Institute shall reach its final decision after examining the applicant's observations and amendments made to the application. The decision of the Institute may be to grant the patent for all or part of the claims.

Where, on examination, the Institute finds that the application meets the patentability requirements and that no objections have been raised, it shall decide to grant the patent and shall notify the applicant accordingly.

On payment of the prescribed fees according to the decision reached, the Institute shall issue the patent applied for.

Under the system of patent grant with substantive examination, the State shall not guarantee the validity and usefulness of the subject matter of the patent granted.

Publication and Printing of a Patent Granted with Substantive Examination

63. The grant of a patent shall be published in the relevant Bulletin. This publication shall include the following particulars:

(a) the patent number;

(b) the classification code or codes of the invention;

(c) the title describing the subject matter of the invention;

(d) the name, nationality and domicile of the patentee

(e) the abstract;

(f) the number and date of the issue or issues of the Bulletin in which the patent application and any amendments to the application were published;

(g) the date of issue of the patent;

(h) the possibility of inspecting the documentation concerning the patent, the search report and the decision of the Institute on the substantive examination, showing its findings on the novelty and inventive step characteristics and on the adequacy of the description and any objections raised in the course of the examination;

(i) a mention that the patent has been granted following a substantive examination of novelty and inventive step.

Every patent shall be printed by the Institute in the form of a pamphlet and distributed on request. Printing may be carried out by reprographic means where necessary.

In addition to the particulars mentioned in the first paragraph of this Article, every pamphlet shall contain the description, the claims and drawings in their entirety, and also the full text of the state-of-the-art search report and the issue number of the Bulletin in which the decision to grant the patent was published.

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