Turkey: An Overview Of The Patent Protection İn Turkey Under The New IP Law

Last Updated: 8 March 2019
Article by Selma Ünlü and Gülay Göksu

Industrial Property Law numbered 6769 ("IP Law") has come into force after being published in the official gazette on January 10, 2017 and numbered 29944.

Some of the most notable changes brought by IP Law in the new Patent system are as following:

  • Post-grant opposition proceedings:

The notable improvement is that a post-grant opposition system is brought by the new IP law in line with the system ruled in Article 99 EPC. The existing Decree Law  numbered 551 was not providing a post-grant opposition to the granted patents and third parties therefore had have to file a nullity action before the Courts to challenge the validity of a granted patent. This practice has now been changed and the third parties will have a right to file an opposition instead of costly litigation within six months as of the date of publication of the grant in official bulletin.

  • Abolition of seven-year patent system:

Abrogating the "unexamined" patent system is one of the other significant improvements brought by the new IP law. The existing Decree Law has been criticized as it leads up to potential bad faith patent registrations without substantive patentability examination. Now, this practice of granting the unexamined patent is abandoned and from now on, the novelty or inventive step of the invention will be examined.  

  • Search requirement is brought for obtaining Utility Model Protection

According to the existing Decree Law, inventions that are novel and industrially applicable can be protected by utility models for a period of ten years starting from the filing date of the application and an inventive step is not a prerequisite under this system. The new IP law still keeps these requirements for obtaining Utility Model protection, but issuance of a search report is included as an additional requirement in the new IP law. This means that obtaining Utility Model Protection becomes more difficult than before and this new arrangement will reduce the number of easily obtained registrations with bad faith that are made to be used as a shield in possible infringement allegations, to some extent.

  • Improvement in the defense to infringement based on prior commercial use

The prior user rights defense is already well covered in most countrys' laws to balance the interest of the prior user and the patentee. According to this principle, the patentee is not eligible to initiate a patent infringement action to those who has prior user rights due to the fact that they have been using the patented innovation as a trade secret before filing/priority date of a patent. The existing decree law also covers the prior user rights defense, but this right can only occur if the use took place between the filing date and priority date. In other words, the defense to infringement based on prior commercial use was not available for the use of third parties which took place earlier than priority date of patent. However, the new IP law makes an amendment on the period which is taken into account for conferring the prior use right. According to the wording of new IP Law, the prior use defense will be available for the use of third parties took place before filing date of a particular patent. The prior use defense can be raised by third parties acting in good faith only, and its scope is limited with Turkey's territory.

  • Compulsory Licencing

According to the former Decree Law No: 551, the grounds for compulsory licensing were limited to non-working of the invention, interrelation of technologies and public interests. This list has been broadened now with the grounds that: 

  • exporting pharmaceutical products to the countries where an urgent need exists for public health,
  • plant breeders' needs for improving a plant variety in situations where such improvement is not possible without infringing  a patent protecting the said variety, and
  • Patentee's activities distorting a fair competition.

However, further provisions are brought also in order to safeguard patentee's rights for removing any compulsory license granted before, in the event that grounds for the compulsory licensing are removed and will likely not repeat.

  • Process Patents

The former legislation was unclear and it was including inconsistent provisions relating to the onus of proof in the case of an infringement of process patents. The new IP law makes it clear that onus of the proof lies with the defendant if the product obtained by the patented process is "new". In other cases, the burden of proof shifts to the claimant or the Court may ask to the defendant to prove that the patented process would not be infringed.

                The improvements brought by the new IP law are not limited to those mentioned above.            However, there are also some aspects which are not fully harmonized with EPC. One of them         is the issue of patentability of second medical use and biotechnological inventions.

  • The discussion revolving around whether it is compulsory to send a notice to the patent owner before filing an action for a declaratory judgment of non-infringement is now over

The abrogated Patent Decree-Law used to include a provision setting forth that prior to initiation of an action for a declaratory judgment of non-infringement, a notice shall be served to the patent owner to demand its observations on whether the requesting party's manufacturing activities or manufacturing preparations constitute infringement or not. Serving such a letter was not deemed compulsory to initiate this action according to interpretations of some judges due to wording of the provision in the law whereas some judges considered it as a pre-cause of action. The new IP law now clearly states that making this notification is not compusyory. Thus, the discussions on the necessity of serving such letter have come to an end. However, the Courts may still consider the absence of such letter as a reason for not imposing patent owner to pay the litigation expenses even if the case is accepted in favour of the plaintiff.

  • The prevention of a potential infringement is now available and the possible impact of this new rule in  interpreting the scope of Bolar Exception

The new IP Law keeps the patentee's right in case of infringement regulated under the former legislation, but new Law specifically mentions the prevention of a "potential" infringement. Implementation of this new rule will be shaped in future by court precedents; however, one of its impacts would be expected in interpreting the scope of Bolar Exception. In Turkey, market access consists of two main steps, namely obtaining marketing authorization and a sales permit from the Ministry of Health.  Per the established COA's decisions; marketing authorization applications are not accepted as an act of patent infringement. However, the Turkish IP courts have followed different interpretations to determine the scope of the exemption in Turkey in relation to the sales permit stage.  Although most of IP courts tend to interpret sales permit stage under the exemption, Court's interpretation on determining the scope of Bolar Exemption may now change and applying for a sale permit at MoH may be evaluated as a potential infringement under this new provision. We will see how it will be decided in future decisions of the courts.

  • Still uncertainty out there for the patentability of second medical use claims and biotechnological inventions

Neither the existing Decree Law nor the new IP law includes a clear provision regarding the patentability of second and further medical indications and it cause serious problems in practice in Turkey.

Moreover, some IP Courts have a tendency to even not accept the second medical use claims granted by the EPO and validated in Turkey if they have been registered before the date of December 13, 2007 when EPC 2000 came in force by basing on the article 1/3 of the decision of the Administrative Council. Indeed, according to the subject article of the decision of the Administrative Council, Article 54(5) EPC allowing patentability of second medical use claims as prescribed by EPC 2000, shall apply to the European patents pending at the time of its entry into force, in so far as a decision on the grant of the patent has not been taken. By taking into account of this decision of Administrative Council, the IP Courts do not even examine the patentability conditions in terms of the novelty and inventive step, since such patents are considered as null and void. The courts do not consider the decision numbered G-5/83 of The Enlarged Board, which acknowledge the second medical use patent in the format of "Swiss type claim" because the decisions of the EBA are not binding on the national courts. Although the CoA reversed the first instance of Court's decision outlined above, the Court insisted on its previous decision and now the matter is under the examination of the General Assembly of Civil Chambers, a higher Court of CoA. We will see the approach of the General Assembly of Civil Chambers on that matter.

As the new IP Law also remains silent on the patentability of second and further medical indications, these discussions are likely to continue. By any means, it is obvious that Turkey has failed to harmonize its local legislation with EPC provisions by not including the clear provision on patentability of second and further indications.

This uncertain situation is the same in terms of the patentability of biotechnological inventions excepting "microbiological" products and processes. The new IP law includes provisions for the protection of biotechnological inventions but the protection is restricted with "microbiological" products and processes.

Accordingly, pharmaceutical companies had better to obtain European Patents instead of national patents especially for the inventions relating to secondary indications and biotechnological inventions as this would be safest route to protect such inventions.

Despite the failure in harmonization of national law in terms of some aspects, it is hopeful that the IP rights will be eventually protected by a law instead of decree law. Per the Constitution, any restriction on "property rights" has to be regulated by laws issued by the Parliament. But in Turkey, all IP Rights were previously regulated by Decree Laws issued by the Board of Ministries. In the recent years, demanding the annulment of articles of decree laws had become a common practice among the defendants who want to delay the trial or get rid of the consequences of their act if possible. Several provisions related to IP rights including the ones within the Patent Decree Law were taken to the Constitutional Court and all of them were annulled by Constitutional Court on the ground that these articles are within the scope of the property right and according to the article 91 of Constitution, the right of property cannot be regulated with the Decree Law. In fact, Constitutional Court has a set mind that IP rights cannot be regulated in Decree Law and keep annulling provisions in Trademark and Patent Decree Laws when such demand is raised and taken to the Constitutional Court.  Accordingly, the new IP Law will serve for such good purpose.

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.

Similar Articles
Relevancy Powered by MondaqAI
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”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions