Turkish Patent Institute
- Section 1 General
- Section 2 Private and/or non-commercial use
- Section 3 Experimental use and/or scientific research
- Section 4 Preparation of medicines
- Section 5 Prior use
- Section 6 Use of articles on foreign vessels, aircrafts and land vehicles
- Section 7 Acts for obtaining regulatory approval from authorities
- Section 8 Exhaustion of patent rights
- Section 9 Compulsory licensing and/or government use
- Section 10 Exceptions and limitations related to farmers' and/or breeders' use of patented inventions
- Section 11 Other exceptions and limitations
Section 1: General
1. As background for the exceptions and limitations to patents investigated in this questionnaire, what is the legal standard used to determine whether an invention is patentable? If the standard for patentability includes provisions that vary according to the technology involved, please include examples of how the standard has been interpreted, if available. Please indicate the source of law (statutory and-or case law) by providing the relevant provisions and/or a brief summary of the relevant decisions.
Under the Turkish Patent Decree law, an invention which is novel, which surpass the State-of-the-Art and which is applicable in industry shall be protected by patents.(Art 5)
Correspondingly, please list exclusions from patentability that exist in your law. Furthermore, please provide the source of those exclusions from patentability if different from the source of the standard of patentability, and provide any available case law or interpretive decisions specific to the exclusions.
According to the article 6 of the Turkish Patent Decree Law, non-Patentable subject matter and Inventions are given below.
Article 6 :
The following, not being inventions as of their nature, shall remain outside the scope of this present Decree-Law :
a/ Discoveries, scientific theories, mathematical methods;
b/ Plans, methods, schemes/rules for performing mental acts, for conducting business/trading activity, and for playing games.
c/ Literary and artistic works, scientific works, creations having an esthetic characteristic, computer programs.
d/ Methods involving no technical aspect, for collecting, arranging, offering/presenting and transmitting information/data.
e/ Methods of diagnosis, therapy and surgery applying to human or animal body.
The provision under the paragraph one, subparagraph (e) of this present Article, shall apply neither to the products and compositions (per se) used in connection with these methods nor to their process of manufacturing.
Patent shall not be granted for inventions in respect of following subject matter.
a/ Inventions whose subject matter is contrary to the public order or to morality as is generally accepted.
b/ Plant and animal varieties/species or processes for breeding/plant or animal varieties/species, based mainly on biological grounds.
2. As background for the exceptions and limitations to patents investigated in this questionnaire, what exclusive rights are granted with a patent? Please provide the relevant provision in the statutory or case law. In addition, if publication of a patent application accords exclusive rights to the patent applicant, what are those rights?
Scope of Right Conferred By a Patent is given below according to the article 73 of the Turkish Patent Decree Law,
Article 73 :
The holder of a patent shall benefit from the right it confers without differentiating between the place of the invention, its field of technology and whether the concerned products are imported or of domestic production.
The holder of a patent is entitled to prevent following actions by third parties performed without permission:
a/ Production, sale, use, or importation of patented products or keeping them in possession for purposes other than for personal needs;
b/ Use of a process that is the subject matter of the patent;
c/ Offers made by third persons to others for the use of a patented process of which the use is known or should be known to be prohibited;
d/ Putting to sale or making use or importing or keeping in possession for any such purpose other than for personal needs of products directly obtained through the patented process.
3. Which exceptions and limitations does the applicable law provide in respect to patent rights (please indicate the applicable exceptions/limitations):
Private and/or non-commercial use;
Experimental use and/or scientific research;
Preparation of medicines;
Prior use;
Use of articles on foreign vessels, aircrafts and land vehicles;
Acts for obtaining regulatory approval from authorities;
Exhaustion of patent rights;
Compulsory licensing and/or government use.
Section 2: Private and/or non-commercial use
4. If the exception is contained in statutory law, please provide the relevant provision(s):
Art 75 (a) of the Turkish Patent Decree Law, acts of any non industrial or non commercial purpose and limited to private ends/aims; shall remain outside the scope of rights conferred by a patent :
5. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
None
6.(a) What are the public policy objectives for providing the exception?
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
7. If the applicable law defines the concepts “non-commercial”, “commercial” and/or “private”, please provide those definitions by citing legal provision(s) and/or decision(s):
No definition
8. If there are any other criteria provided in the applicable law to be applied in determining the scope of the exception, please provide those criteria by citing legal provision(s) and/or decision(s):
None
9.-10.
[Note from the Secretariat: response was not provided.]
Section 3: Experimental use and/or scientific research
11. If the exception is contained in statutory law, please provide the relevant provision(s):
Art 75(b) of the Turkish Patent Decree Law provide that acts for experimental purposes shall remain outside the scope of rights conferred by a patent .
12. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
None
13.(a) What are the public policy objectives for providing the exception?
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
14. Does the applicable law make a distinction concerning the nature of the organization conducting the experimentation or research (for example, whether the organization is commercial or a not-for-profit entity)? Please explain:
The Turkish Patent Decree Law does not make any distinction concerning the nature of the organization conducting the experimentation or research.
15. If the applicable law defines the concepts “experimental use” and/or “scientific research”, please provide those definitions by citing legal provision(s) and/or decision(s):
None
16. If the purpose of experimentation and/or research is relevant to the determination of the scope of the exception, please indicate what that purpose is:
Experimentation and/or research should aim to:
Every acts for non commercial experimental purposes, very broad definition without any restriction.
17. If any of the following criteria is relevant to the determination of the scope of the exception, please indicate:
Research and/or experimentation must be conducted on or relating to the patented invention (“research on”);
Research and/or experimentation must be conducted with or using the patented invention (“research with”).
Please explain by citing legal provision(s) and/or decision(s):
There is no further clarification of the exceptions provided.
There are no criteria relevant to the determination of the scope of the exception
18. If the commercial intention of the experimentation and/or research is relevant to the determination of the scope of the exception, please indicate whether the exception covers activities relating to:
A non-commercial purpose
19. If the applicable law makes a distinction between “commercial” and “non-commercial” purpose, please explain those terms by providing their definitions, and, if appropriate, examples. Please cite legal provision(s) and/or decision(s):
No legal provision explaining these terms by providing their definitions.
20. If the applicable law provides for other criteria to be applied in determining the scope of the exception, please describe those criteria. Please illustrate your answer by citing legal provision(s) and/or decision(s):
No further criteria applied.
21. Is the applicable legal framework of the exception considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
No further amendments are foreseen.
22. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
None.
Section 4: Preparation of medicines
23. If the exception is contained in statutory law, please provide the relevant provision(s):
Art 75(c) of the Turkish Patent Decree Law provide that preparations of medicines in pharmacies involving no mass production and carried out solely in making up a prescription and acts related to the medicines thus prepared shall remain outside the scope of rights conferred by a patent.
24. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
None.
25.(a) What are the public policy objectives for providing the exception? Please explain:
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
26. Who is entitled to use the exception (for example, pharmacists, doctors, physicians, others)? Please describe:
No definition regarding the entitled person to use the exception.
27. Does the applicable law provide for any limitations on the amount of medicines that can be prepared under the exception?
No
28. If the applicable law provides for other criteria to be applied in determining the scope of the exception, please describe those criteria. Please illustrate your answer by citing legal provision(s) and/or decision(s):
None
29. Is the applicable legal framework of the exception considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
No amendment is foreseen.
30. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
None.
Section 5: Prior use
31. If the exception is contained in statutory law, please provide the relevant provision(s):
According to Article 77 :
The applicant or patent owner shall not have the right against any person who works the invention or has made serious and effective preparations to work the said invention in the country in a good faith between the date of filing of the application and the date of priority, if any, to prevent them to continue to work the subject of the patent in the same manner as before or to commence to work as of the preparations made to these effect. However, continuing to work the subject matter of the patent or working as of the preparations made to these effects may only be to the extent necessary for meeting the reasonable needs of their enterprise. Such right to work the invention may only be transferable with the enterprise.
32. If the exception is provided through case law, please cite the relevant decision(s) and provide its (their) brief summary:
None.
33.(a) What are the public policy objectives for providing the exception? Please explain:
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
34. How does the applicable law define the scope of “use”? Does the applicable law provide for any quantitative or qualitative limitations on the application of the “use” by prior user? Please explain your answer by citing legal provision(s) and/or decision(s):
According to the Art 77, continuing to work the subject matter of the patent or working as of the preparations made to these effects may only be to the extent necessary for meeting the reasonable needs of their enterprise.
35. Does the applicable law provide for a remuneration to be paid to the patentee for the exercise of the exception? Please explain:
The Turkish Patent Decree law does not provide for a remuneration to be paid to the patentee for the exercise of the exception.
36. According to the applicable law, can a prior user license or assign his prior user’s right to a third party?
Yes.
37. In case of affirmative answer to question 36, does the applicable law establish conditions on such licensing or assignment for the continued application of the prior use exception?
Yes.
If yes, please explain what those conditions are:
According to Art 77, such right to work the invention shall only be transferable with the enterprise.
38. Does this exception apply in situations where a third party has been using the patented invention or has made serious preparations for such use after the invalidation or refusal of the patent, but before the restoration or grant of the patent?
No.
39. If the applicable law provides for other criteria to be applied in determining the scope of the exception, please describe those criteria. Please illustrate your answer by citing legal provision(s) and/or decision(s):
Only be to the extent necessary for meeting the reasonable needs of their enterprise. No legal decision.
40. Is the applicable legal framework of the exception considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
No amendment is foreseen.
41. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
None.
Section 6: Use of articles on foreign vessels, aircrafts and land vehicles
42. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 75(d) of the Turkish Patent Decree Law provide that patent right shall not be effective against the following products:
d- Use of patented invention in the manufacture or operation of ships or spaceships or airplanes or land transportation vehicles of countries signatory of the Paris Convention or for satisfying the needs of these, provided that said vehicles happen to be, temporarily or accidentally, within the boundaries of the Republic of Turkey;
Article 75(e) of the Turkish Patent Decree Law provide that patent right shall not be effective against the following products:
Where acts provided under Article 27 of the International Convention for Civil Aviation dated December 7, 1944 are related to an aircraft of a State, the provisions of this present Article shall apply likewise to said aircrafts.
43. If the exception is provided through case law, please cite the relevant decision(s) and provide its (their) brief summary:
None.
44.(a) What are the public policy objectives for providing the exception? Please explain:
[Note from the Secretariat: response was not provided.]
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
Implementation of Paris Convention Art. 5
45. The exception applies in relation to:
Vessels;
Aircrafts;
Land Vehicles;
Spacecraft.
46. In determining the scope of the exception, does the applicable law apply such terms as ”temporarily” and/or “accidentally” or any other equivalent term in relation to the entry of foreign transportation means into the national territory? Please provide the definitions of those terms by citing legal provision(s) and/or decision(s):
Yes, temporarily or accidentally
47. Does the applicable law provide for any restrictions on the use of the patented product on the body of the foreign vessels, aircrafts, land vehicles and spacecraft for the exception to apply (for example, the devices to be used exclusively for the needs of the vessel, aircraft, land vehicle and/or spacecraft)? Please explain your answer by citing legal provision(s) and/or decision(s):
Yes, According to article 75(d) of The Turkish Patent Decree Law the patented product must be used in the manufacture or operation of ships, spaceships, airplanes, land transportation vehicles or for the needs of the vessels.
48. If the applicable law provides for other criteria to be applied in determining the scope of the exception, please describe those criteria. Please illustrate your answer by citing legal provision(s) and/or decision(s):
None.
49. Is the applicable legal framework of the exception considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
[Note from the Secretariat: response was not provided.]
50. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
None.
Section 7: Acts for obtaining regulatory approval from authorities
51. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 75(f) of the Turkish Patent Decree Law provide that patent right shall not be effective against the following products:
f-Acts for experimental purpose relating to the subject matter of the invention subjected to market approval including the market approval of medicines and the tests and experiments required therefore.
52. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
None.
53.(a) What are the public policy objectives for providing the exception? Please explain:
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
54. Who is entitled to use the exception? Please explain:
No special provision defining the entitled party.
55. The exception covers the regulatory approval of:
Certain medicinal products.
56. Please indicate which acts are allowed in relation to the patented invention under the exception?
Acts necessary to obtain marketing approval for medicinal products, e.g., experimental studies and tests.
57. If the applicable law provides for other criteria to be applied in determining the scope of the exception, please describe those criteria. Please illustrate your answer by citing legal provision(s) and/or decision(s):
None
58. Is the applicable legal framework of the exception considered adequate to meet the objectives sought (for example, are there any amendments to the law foreseen)? Please explain:
No amendments are foreseen.
59. Which challenges, if any, have been encountered in relation to the practical implementation of the exception in your country? Please explain:
[Note from the Secretariat: response was not provided.]
Section 8: Exhaustion of patent rights
60. Please indicate what type of exhaustion doctrine is applicable in your country in relation to patents:
National
If the exception is contained in statutory law, please provide the relevant provision(s):
According to the Turkish Patent decree Law Article 76 :
Rights conferred by a patent shall not extend to acts committed with regard to a product under patent protection after said product has been put to sale in Turkey by the right holder of the patent or with his consent.
If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
None
61.(a) What are the public policy objectives for adopting the exhaustion regime specified above? Please explain:
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
[Note from the Secretariat: response was not provided.]
62. Does the applicable law permit the patentee to introduce restrictions on importation or other distribution of the patented product by means of express notice on the product that can override the exhaustion doctrine adopted in the country?
Uncertain
Please explain your answer by citing legal provision(s) and/or decision(s):
[Note from the Secretariat: response was not provided.]
63.-64.
[Note from the Secretariat: response was not provided.]
Section 9: Compulsory licensing and/or government use
Compulsory licenses
65. If the exception is contained in statutory law, please provide the relevant provision(s):
Article 99 :
Compulsory license is (to be) granted where no offer for licensing offer has been made and where any one of the following situations/conditions materializes:
1. Failure to put to use/work the patented invention in accordance with Article 96;
2. Dependency of subject matter of patents as mentioned in Article 79.
3. On grounds of public interest as mentioned in Article 103 (including public health and national security)
66. If the exception is provided through case law, please cite the relevant decision(s) and provide its(their) brief summary:
None.
67. What grounds for the grant of a compulsory license does the applicable law provide in respect to patents (please indicate the applicable grounds):
Non-working or insufficient working of the patented invention;
Public health;
National security;
Dependent patents;
Where the working of a patented invention is particularly necessary for the public interest.
68.(a) What are the public policy objectives for providing compulsory licenses in your country? Please explain:
[Note from the Secretariat: response was not provided.]
(b) Where possible, please explain with references to the legislative history, parliamentary debates and judicial decisions:
Implementation of TRIPS Agreement
69. If the applicable law provides for the grant of compulsory licenses on the ground of “non-working” or “insufficient working”, please provide the definitions of those terms by citing legal provision(s) and/or decision(s):
Article 96 of the Turkish Patent Decree Law
The patentee or the person authorized by him is under obligation to put to use/work, the invention under patent protection. The obligation to put to use/work must be realized within three years as from the date of publication in the relevant bulletin of the announcement related to the issue of the patent.
Market conditions are (to be) taken into consideration when/for assessing use/working.
Article 100 of the Turkish Patent Decree Law
Any interested person may after the expiration of the period foreseen in Article 96, request the granting of a compulsory license on the grounds that the patent, at the time of the request, was not put to use or that the delay in the use thereof was not due to justifiable/legitimate reasons or that the use thereof had been suspended during an uninterrupted period of more than 3 years without justifiable/legitimate reason.
Technical or economic or legal reasons of an objective nature shall be deemed to constitute legitimate excuses for the inability to put the patent to use. The reasons accepted to be in the nature to constitute obstacles for using/working the patented invention are those which are beyond the control and will of the patentee.
70. Does the importation of a patented product or a product manufactured by a patented process constitute “working” of the patent? Please explain your answer by citing legal provision(s) and/or decision(s):
Yes, the importation of a patented product constitutes working of the patent according to the art 40 of the implementing Regulations.
71. In case of the grant of compulsory licenses on the grounds of non-working or insufficient working, does the applicable law provide for a certain time period to be respected before a compulsory license can be requested?
Yes
If yes, what is the time period?
Within 3 years as from the date of publication of the mention of the grant of the patent or a patented invention is not sufficiently and continuously worked for more than 3 years in Turkey.
72. In case of the grant of compulsory licenses on the grounds of non-working or insufficient working, does the applicable law provide that a compulsory license shall be refused if the patentee justifies his inaction by legitimate reasons?
Yes
If yes, what are “legitimate reasons”?
Technical or economic or legal reasons of an objective nature shall be deemed to constitute legitimate excuses for the inability to put the patent to use. The reasons accepted to be in the nature to constitute obstacles for using/working the patented invention are those which are beyond the control and will of the patentee. (Art. 100).
73. If the applicable law provides for the grant of compulsory licenses on the ground of refusal by the patentee to grant licenses on “reasonable terms and conditions” and within a “reasonable period of time”, please provide the definitions given to those terms by citing legal provision(s) and/or decision(s):
[Note from the Secretariat: response was not provided.]
74. If the applicable law provides for the grant of compulsory licenses on the ground of anti-competitive practices, please indicate which anti-competitive practices relating to patents may lead to the grant of compulsory licenses by citing legal provision(s) and/or decision(s):
No.
75. If the applicable law provides for the grant of compulsory licenses on the ground of dependent patents, please indicate the conditions that dependent patents must meet for a compulsory license to be granted:
According to the art 101, where the patented invention can not be put to use without infringing the rights conferred by a prior patent, the latter patentee, by bringing evidence that his patent, with reference to the prior patent will serve a different industrial purpose or achieves significant technical improvement, may request the court to grant license for using the patent of prior date.
76. Does the applicable law provide a general policy to be followed in relation to the remuneration to be paid by the beneficiary of the compulsory license to the patentee? Please explain:
According to the art 110, The decision to grant the compulsory license shall include the following:
The scope, the fee, the term of the license, the guarantee produced by the licensee, the date when the use is to commence and the measures for an effective and serious use of the patent.
According to the art 114:
In case of a compulsory license the patentee shall be paid an economically reasonable fee. The license fee shall be determined especially by taking into consideration the economic importance of the invention.
Request for modifying the terms/conditions
Article 118 :
The licensee or the patentee may request from the court to modify the fee or the terms/conditions of compulsory license on grounds of events occurring, at a later date, and justifying such modification. Especially, when the patentee has subsequently concluded a contractual license, under conditions, more favourable compared to those of the compulsory license, confers the right to request such modification.
Where the licensee seriously violate his obligations arising from the compulsory license or where he continuously fails to fulfill them, the court may, upon request of the patentee cancel the license, without prejudice to patentee’s right for compensation of damages.
77. If the applicable law provides for the grant of compulsory licenses on the ground of “national emergency” or “circumstances of extreme urgency”, please explain how the applicable law defines those two concepts and their scope of application, and provide examples:
No specific definition for “national emergency” or “circumstances of extreme urgency”.
There are definitions for “public interest” and “national defense or public health” in Art. 103 on Compulsory license on grounds of Public Interest
Article 103 :
Situations where the non use of the invention or its insufficient use in terms of quality and quantity, causes serious damage to the country’s economic or technical development shall be deemed to also involve public interest. The concerned Ministry proposes to the Council of Ministers to issue a decree pertaining to the grant of compulsory license. In case, where the use of the invention is important for national defense or public health, the proposal is prepared jointly by the concerned ministry, and the Ministry of National Defense or the Ministry of Health.
78. Please indicate how many times and in which technological areas compulsory licenses have been issued in your country:
Only 1 compulsory license has been issued in Turkey. Technological area of the relevant invention is mechanical engineering (IPC Class: F16B13 (Dowels or other devices fastened in walls or the like by inserting them in holes made therein for that purpose)). The compulsory license was granted on the grounds that the failure to put to use/work the patented invention in accordance with Article 96. In other words, the patentee had not put to use/work, the invention under patent protection within three years as from the announcement related to the issue of the patent.
79.-80.
[Note from the Secretariat: response was not provided.]
Government use
81.-88.
[Note from the Secretariat: the applicable law of Turkey does not provide exceptions related to government use.]
Section 10: Exceptions and limitations related to farmers' and/or breeders' use of patented inventions
89.-100.
[Note from the Secretariat: the applicable law of Turkey does not provide exceptions and limitations related to farmers’ and/or breeders' use of patented inventions.]
Section 11: Other exceptions and limitations
101.-103.
[Note from the Secretariat: the applicable law of Turkey does not provide other exceptions and limitations.]
[End of questionnaire]
November 2011