Republic of
Turkey
PATENT PROTECTION IN TURKEY
DECREE-LAW NO.551 PERTAINING
TO THE PROTECTION OF PATENT RIGHTS
IN FORCE AS FROM JUNE 27,
1995
AS AMENDED BY THE DECREE LAW
NO:566 DATED SEPTEMBER 22, 1995 AND
AMENDED/ADDED/REPEALED BY
THE LAW NO:4128 OF NOVEMBER 7, 1995
Turkish Patent Institute
March 1996
DECREE-LAW NO.551 PERTAINING TO THE PROTECTION OF PATENT RIGHTS
IN FORCE AS FROM JUNE 27,
1995
Provisions
in bold,
in Articles 43, 53, 57, new Article 73/A and Article 174
have
been amended/added/repealed by Law No. 4128 of November 07, 1995.
Transitional
Article 4 has been amended by the Decree-Law No. 566 dated September 22, 1995.
PART ONE
Preliminary Provisions
SECTION ONE
Aim, Scope, Persons Entitled To
Protection and Definitions
Aim and Scope
Article 1 :
The aim of this present Decree-Law is to protect the inventions by granting
1. Patents,
or
2. Utility Model Certificates,
in order to promote the inventive activity and to contribute to technical, economical and social development by implementing the inventions in industry.
This present Decree-Law contains the principles, the rules and the conditions/requirements for issuing Patents or Utility Model Certificates to inventions qualifying for grant of industrial property right.
Persons Entitled To Protection
Article 2 :
The Protection conferred by this law is available to natural and legal persons who are domiciled or who have industrial or commercial establishments within the territory of the Republic of Turkey, or to the persons entitled to file applications under the provisions of the Paris Convention.
Natural or legal persons other than those referred to in the first paragraph of this present Article, who are nationals of the States which accord legal or de facto protection to the nationals of the Republic of Turkey shall enjoy, according to the reciprocity principle, patent and/or utility model protection in Turkey.
Definitions
Article 3:
Within the meaning of this present Decree-Law, Institute means the Turkish Patent Institute set-up in accordance of the Decree-Law No. 544.
Within the meaning of this present Decree-Law, “Paris Convention” is the international Convention for the Protection of Industrial Property dated March 20, 1883.
Priority of Application of International
Agreements
Article 4 :
Where International Agreements having entered into force according to the laws of the Republic of Turkey, contain provisions which are preferential/more favorable to those of this present Decree-Law, the persons referred to in Article 2 may request to benefit from such preferential/more favorable provisions.
SECTION TWO
Patentability Requirements
Patentable Inventions
Article 5 :
Inventions which are novel, which surpass the State-of-the-Art and which are applicable in industry shall be protected by patents.
Non-Patentable subject matter and
Inventions
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.
Novelty
Article 7 :
Any invention which is not part of/comprised in the State-of-the-Art shall be deemed to be novel.
The State-of-the-Art shall be held to comprise information/data pertaining to the subject matter of the invention, accessible to the public in any part of the world, before the date of filing of the application for patent by disclosure whether in writing, or orally, by use or in any other way.
Patent and Utility Model applications filed in Turkey prior to the date of filing of the application for patent and published on or after that date are considered to be comprised in the State-of-the-Art as of their first disclosed contents/texts.
Disclosures not affecting
Patentability
Article 8 :
In the circumstances hereunder cited, disclosure of information which otherwise would affect the patentability of an invention claimed in the application shall not affect the patentability of that invention where the information was disclosed, during the 12 months preceding the date of filing or, where priority is claimed, the date of priority of the application:
a/ by the inventor,
b/ by an office when the information was contained
(1) in another application filed by the inventor and which application should not have been disclosed by the office, or
(2) in an application filed without the knowledge or consent of the inventor by a third party which obtained the information directly or indirectly from the inventor or,
c/ by a third party which obtained the information directly or indirectly from the inventor.
According to the paragraph one of this present Article, shall be deemed
inventor any person who, at the date of filing the application, had the right
to the patent.
The effects of paragraph one of this present Article are not limited to a term
and may be invoked at any time.
Where the applicability of paragraph one of this present Article is contested,
the party invoking that this paragraph must be applied shall have the burden of
proving, that the conditions of that paragraph are fulfilled or are expected to
be fulfilled.
Surpassing the State-of-the-Art
(involving inventive level/step)
Article 9 :
An invention shall be deemed to surpass the State-of-the-Art (to involve inventive activity/step) when it is the result of an activity which is not obviously realizable from the State-of-the-Art, by a person skilled in the concerned technical field.
Applicability in Industry
Article 10 :
An invention shall be regarded as being applicable in industry where it is susceptible to be produced or used in any given field of industry, including agriculture.
PART TWO
Right to a Patent
Usurpation of the Right And
Indication of the Inventor
Right to a Patent
Article 11 :
The right to a patent shall belong to the inventor or to his successor in title and shall be transferable.
Where an invention has been made jointly by more than one person, if not foreseen otherwise by the parties, the right to request a patent shall belong to them jointly.
Where an invention has been made independently by several persons at the same time, the right to a patent shall belong to the person who has filed the first application or who can claim an earlier priority right on others.
The person who is the first to apply for a patent shall be vested with the right to request the patent until proof to the contrary is established.
Usurpation of the Right to a
Patent
Article 12 :
A person claiming to be the rightfully vested with the right to request the patent; in conformity with paragraph one of Article 11, may initiate legal proceedings against the applicant in accordance with the provisions of Article 129. No claim may be raised before the Institute in that the applicant is not the rightfully vested with the right to request the patent. Where the court decision concerning the right to a patent is in favour of the plaintiff, the holder of the right to a patent may request one of the following courses of action within three months after the judgment has become res judicata.
a/ He may request that the prior application for patent subject to the court action in the matter of usurpation of same, be accepted as his application and be further prosecuted as such.
b/ He may file a new application for the same invention by claiming the same date of priority. Such an application will be prosecuted as of the date of filing of the first application. In such a situation, the application subject to usurpation shall remain without effect.
c/ He may request that the application subject to usurpation be rejected.
The provisions of Paragraph three of Article 45 of this present Decree-Law, shall apply to every new application filed in conformity with Paragraph one of this present Article.
Where a court action has been instituted in accordance with Paragraph one hereabove for determining the right to a patent, the application may not be withdrawn without the consent of the plaintiff. The court shall rule to suspend the patent granting procedure as from the date of publication of the application until the date when the judgment becomes res judicata in the case where the plaintiff's claim is rejected and in the case where the plaintiff's claim is accepted within a period of three months subsequent to the date when the judgment becomes res judicata.
Usurpation of a Patent
Article 13 :
Where a patent has been granted to a person other than the rightful owner according to Paragraph one of Article 11, the person; claiming to be the rightfully vested, with such right; may institute a court action claiming the transfer of ownership of the patent without prejudice to his other rights and claims conferred by the patent.
Where only partial right to the patent is claimed, a court action may be instituted claiming that joint ownership on the patent be recognized in accordance with paragraph one of this present Article.
The right to raise such a claim and institute such a court action according to Paragraph one and two of this present Article, shall be exercised within two years following the date of publication of the patent, or in case of bad faith, until the expiry of the term of protection of the patent.
At the request of the interested party, the court action instituted according to the present Article and the claims put forward therein, the final ruling or any other action concluding the court action shall be entered in the Patent Register in order to have effect against third parties.
Consequences of Termination of
Usurpation
Article 14 :
Where the ownership of a patent changes in conformity with Article 13, any license granted or other rights benefiting to third persons on the patent shall expire with the entry of said change of ownership in the Patent Register.
Where, prior to the entry of the rightful patent owner in the Patent Register in conformity with Paragraph one of this present Article, the person who subsequently is understood to be the unrightful owner of the patent or a person who has been granted a license for the patent, subject to the court action, prior to the institution of same, have put the said patent to use or have taken effective and concrete steps for that purpose, may request from the rightful patent owner(s) the grant of a non-exclusive license.
Such a request may be filed within a period of two months, in the case of the person appearing as the former owner in the Patent Register, or, in the case of the licensee, within a period of four months. Said periods run as from the date when the Institute notifies the interested parties of date of the entry of the rightful patent owner in the Patent Register.
The license granted in accordance with Paragraph two of this present Article shall be granted for a reasonable period and under fair conditions. In determining such period and conditions, the provisions concerning the grant of compulsory licenses shall apply likewise.
The provisions set forth in Paragraphs two and three of this present Article shall not apply, where the owner of the patent or the licensee, at the time, when they have commenced putting the patent to use or making serious preparations for such use have acted in bad faith.
Indication of the Inventor
Article 15 :
The name of the inventor shall be indicated in the letter's patent. The inventor shall have the right to request from the applicant or the patentee to be indicated as the inventor in the letter's patent.
PART THREE
Employee's Inventions
SECTION ONE
The Concept of Employee
Inventions
Article 16 :
Employee inventions within the meaning of this present Decree-Law are those inventions qualifying for protection under a Patent or a Utility Model Certificate.
Technical improvement proposals do not qualify for protection under a Patent or a Utility Model Certificate.
Within the meaning of this present Decree-Law, an employee is a person who is in the service of another person and is responsible to carry out the work specified by the employer, with personal liability against the employer, in accordance with the provisions of a private legal contract or a legal relationship of similar nature. Trainees and students serving and undergoing a practical training who are not receiving a payment and are not bound to a specific working period are also considered as employees according to the provisions of this present Decree-Law.
Concept of Service Inventions and
Free Inventions
Article 17 :
Within the meaning of this present Decree-Law, employee's inventions are classified as service inventions or free inventions.
Service inventions are those inventions which are made by the employee during the term of his employment, in a private enterprise or public authority, while performing, as of his obligation, the task (s)he has been assigned to or which are based to a great extent on the experience and work/activity of the private enterprise or public authority.
Employee's inventions not falling under the scope of inventions referred to in Paragraph two hereabove, shall be deemed to be free inventions. Free inventions are subject to the provisions of Articles 31 and 32.
Service Inventions and Duty to Report
Article 18 :
An employee having made a service invention shall be under the duty to report, without delay, the invention to his employer, in writing. Where the invention has been made by more that one employee, such report to the employer can be jointly made. The employer shall notify without delay and in writing the persons(s) having made such report, the date when same has been received at his end.
In the report, the employee is under the obligation to disclose the technical problem, its solution and how the service invention was realized. For the better understanding of the invention, the employee shall provide the employer with the drawing(s) of the invention, if any.
The employee shall furthermore specify the experience and activities/work of the enterprise from which he has benefited; if any, the contributions of other employees, the nature/form of such contributions, the instructions he received in respect of his work and with regard to said contributions and the contributions which he considers to be his own.
The employer shall, within two months as from the date of receipt of the employee's report, inform same of the corrections he deems necessary to be made therein. Where the employer fails to request for the correction of the report within the foreseen period of two months, the report referred to in Paragraph two of this present Article, shall be deemed to be (legally) valid/effective even when it fails to meet the requirements.
The employer is under the obligation to provide the assistance necessary for enabling the employee to report in compliance with this present Decree-Law.
Employer's Right on an Invention
Article 19 :
An employer may claim a right, in part or in whole, for a service invention.
The employer shall notify the employee of his claim, in writing. Such claim must be made within four months as from the date of receipt by the employer of the employee's report.
Effect and Consequences of the
Claim
Article 20 :
Where the employer claims ownership in whole on the service invention, with the notification of the declaration (in writing), to this effect, to the employee, all rights on the service invention shall pass to the employer.
Where the employer claims partial ownership on the service invention, the employer may use the invention on the basis on his partial claim. Should such use by the employer considerably impede employee's further exploitation of his invention, the employee may request that, within a period of two months, his employer either takes over, in whole, the service invention or releases it free in his favour.
Dispositions on a service invention made by an employee prior to his employer making a claim in respect thereof, shall have no effect against the employer where such dispositions infringe the rights of the employer.
Service Inventions Becoming Free
Inventions
Article 21 :
A service invention shall become a free invention under the following situations:
a/ where the employer releases a service invention free under a statement in writing;
b/ where the employer makes a claim for part of the service invention;
c/ where the employer has not made a claim to the service invention within four months upon receiving the report of the employee made according to Article 18 or, has not replied within two months to the proposal made according to Paragraph two of Article 20;
The fact that an invention has become free according to Paragraph one (b), of this present Article, shall not affect the right of the employer to make use of same in accordance with Paragraph two of Article 20.
The employee may dispose, as of his free will, of a service invention that has become a free invention, without being subject to the provisions of Articles 31 and 32.
Compensation for Claim of Whole
Ownership
Article 22 :
Where the employer claims ownership in whole on the service invention, the employee shall have the right to a reasonable compensation as against the employer.
In assessing compensation, due consideration shall in particular be given to the economical/commercial applicability of the service invention, the duties of the employee in the enterprise and the enterprise's contribution to the invention.
Compensation for Claim of Partial
Ownership
Article 23 :
Where the employer claims partial ownership on a service invention and uses such invention, the employee may demand a reasonable compensation. In assessing such compensation, Paragraph two of Article 22 shall apply.
After having stated a claim to a service invention, an employer may not avoid the payment of the compensation by contesting that the invention is not worth protection. Where the Institute or, in case the Institute is sued, the court decides that the invention is not patentable, the employee may not demand compensation. The employee's right to such compensation may be claimed until the decision as to the patentability of the invention becomes res judicata.
Determination of Compensation in
the Regulation and Arbitration Procedure
Article 24 :
The compensation tariff pertaining to employee's invention and the arbitration procedure to be followed in case of disagreement shall be determined in the Regulation which will be published by the Ministry of Labour and Social Security within three months following the enactment of this present Decree-Law and after having consulted the professional organizations of employees and employers.
Modality for determining the
Compensation
Article 25 :
The amount and the modality of payment of the compensation shall be determined by the parties in compliance with the provisions of the Regulation indicated in Article 24 after the employer has claimed ownership in full or in part on the service invention.
Where the parties fail to reach an agreement to determine the amount of the compensation and the modality of payment within thirty days in compliance with the provisions of the Regulation, the disagreement shall be settled by arbitration within sixty days.
The decision of arbitration shall be binding upon both parties.
Where two or more employees have contributed to a service invention, the amount of the compensation and the modality of payment shall be determined separately for each of them in accordance with the above provision.
The provisions, if any, of the employment contract, in respect thereof favourable to the employee shall apply.
Employer’s Obligation to Apply
for Domestic Patent
Article 26 :
An employer shall be entitled and under obligation to apply before the Institute for grant of a domestic patent for a service invention reported to him. Where the protection of the invention with a utility model certificate appears to be more appropriate, the employer is under obligation to file without delay an application for the protection of a patentable invention with a utility model certificate.
An employer's obligation to file such an application shall terminate under the following circumstances:
1. where the service invention has become free;
2. where the employee has agreed that no application is to be filed;
3. where the confidentiality of the operational secrets of the enterprise requires that a an application shall not be filed.
Where, after claiming full ownership on a service invention, an employer does not comply with his obligation to file an application and also fails to do so within a reasonable time-period set by the employee, the employee may file an application before the Institute for the service invention in the name and on behalf of the employer.
Where a service invention has become free, the employee shall be entitled to file an application in his own name. Had the employer already filed an application for the protection of the service invention, the rights resulting from such application shall pass to the employee, when the invention is released free.
Filing an Application for a
Service Invention in a Foreign Country
Article 27 :
After claiming full ownership on a service invention, an employer shall be entitled to apply for the protection of the subject invention in a foreign country.
For foreign countries in which an employer does not wish to obtain a patent, he is under the obligation to release free the service invention to the employee and shall enable the employee to apply for a patent in said countries. The invention is to be released free within a reasonable time-period to allow the employee to benefit from the deadlines for priority right(s) under international treaties.
The employer may reserve for himself a non-exclusive right to use the service invention against reasonable compensation in the foreign countries where he has released the invention free in order to enable the employee to obtain a letter's patent for same, and shall have the right to claim that the interests he has reserved to himself shall not be damaged in the concerned countries.
Parties’ Mutual Rights and
Obligations in Acquiring the Right to Patent
Article 28 :
Upon filing an application for patent for a service invention, an employer must give his employee copies of the filing petition and its enclosures and, if requested by the employee, must keep his employee informed of the progress of the application procedure.
The employee is under the obligation to assist his employer for obtaining a patent and to provide the information necessary to this effect.
Duties Resulting from an
Application for Patent or from a Patent
Article 29 :
Where an employer, before meeting his employee's demand for reasonable compensation for the service invention, intends to discontinue prosecuting an application for patent or to surrender patent protection, he must inform his employee accordingly. At the employee's request and expense, the employer must assign the patent right to him and turn over to him any documents necessary to obtain a patent and to maintain same. An employer shall be entitled to surrender his rights resulting from an application for patent or a patent, where the employee does not reply within three months from receipt of the communication made to him in this respect.
Simultaneously with the communication made in the first paragraph, the employer can reserve to himself a non-exclusive right to use the service invention against a reasonable compensation.
Refraining from Filing an
Application for Patent
Article 30 :
Where the interests of the enterprise so require, the employer may refrain from filing an application for patent, for inventions reported to him, which he believes, are legally patentable and keep them secret.
In determining the compensation for an invention under paragraph one of this present Article, account must also be taken of the potential economic losses/disadvantages that might affect the employee for not obtaining a patent for the invention.
Free Inventions and Obligation to
Notify
Article 31 :
An employee who has made a free invention during the term of an employment contract shall notify the employer without delay. In the notification, the employer shall give the employer all the details concerning the invention and, if necessary concerning its realization, which the employer may need in order to assess whether it is in fact a free invention.
Where the employer does not contest, in writing, to the employee that the invention notified to him is a free invention within three months of the notification, he may not put forward the claim thereafter in that the invention is a service invention.
There shall be no obligation to notify the employer of a free invention where the invention is obviously not capable of being used in the employer's field of activity.
Obligation to Offer
Article 32 :
Before exploiting in another way a free invention further, during the term of his employment contract, an employee is under the obligation to make an offer his employer, on a non-exclusive basis to benefit from the invention on reasonable terms, where the invention falls within the field of activity of the employer's enterprise or where the employer’s enterprise is making serious attempts to become active in the field of the invention. The employer may submit such offer together with the notification to be made in compliance with the provisions of Paragraph one of Article 31.
Where the employer does not reply to the offer within three months of its receipt, he shall loose his right of precedence on the matter.
Where the employer accepts the offer within the period prescribed in the paragraph above, but does not find the terms acceptable, the court shall determine the terms upon the request of the parties.
Where important changes come to affect the points taken into consideration in determining the amount and other conditions of the agreement, the employer or the employee may request from the court that the terms of the agreement be adapted to the new circumstances.
Technical Improvement Proposals
Article 33 :
In compliance with the provisions of this present Decree-Law, for technical improvement proposals which are not subject to protection by a letter's patent or a utility model certificate, the employer is under obligation to pay reasonable compensation to the employee provided he makes use of the proposal upon the written notification of his employee. The Provisions of Article 18 concerning the obligation to report and Articles 22 and 25 concerning the determining of compensation in respect of service inventions shall apply by analogy.
All other matters concerning technical improvement proposals shall be regulated under individual or collective employment contracts.
SECTION TWO
Common Provisions Concerning
Employee's Inventions
Mandatory Nature of Provisions
Concerning Employee's Inventions
Article 34 :
The provisions of this present Decree-Law relating to employees may not be modified to the detriment of same. Agreements concerning employee's inventions shall be permissible, in case of service inventions after the application for patent has been filed, or in case of free inventions and technical improvement proposals after their notification to the employer.
Condition to Comply With Equity
Article 35 :
Agreements between the employer and employee concerning service inventions, free inventions, or technical improvement proposals shall be null and void to the extent that they are manifestly inequitable, although they may not violate the mandatory provisions pertaining to employee inventions. This rule shall apply also to the amount of compensation.
Where objections as to the inequity of an agreement or the amount of compensation are not raised in writing within six month following termination of the employment contract, no objections as to inequity may be raised thereafter.
Obligation to respect Secrecy
Article 36 :
An employer shall keep confidential/secret the information/data concerning an employee's invention that has been reported or notified to him, for as long as required by the legitimate interests of the employee.
An employee must keep a service invention confidential/secret as long as it has not become free.
Persons other than the employer or the employee who have knowledge of an invention on the basis of this present Decree-Law may neither use the invention nor disclose it to others.
Effects of Obligations
Article 37 :
General obligations arising for the employer and employee under their employment relationship shall not be affected by the provisions concerning employee's inventions or technical improvement proposals unless further effects arise other than the invention becoming free.
The rights and obligations arising from provisions concerning employee's inventions and technical improvement proposals shall not be affected by termination of the employment relationship.
Employee’s Right of Preemption
Article 38 :
Where the employer goes bankrupt and the trustee in bankruptcy of the estate wishes to dispose the invention independently of the enterprise, the employee shall have a right of preemption to acquire his own service inventions for which the employer has claimed full ownership.
The amount of compensation due, resulting from employee’s inventions or technical improvement proposals shall be considered as privileged credit. Where, there are more than one such privileged credits, the trustee in bankruptcy shall distribute pro rata such credits.
SECTION THREE
Inventions Made by Employees in
Public Service
Inventions and Technical
Improvement Proposals of Employees in Public Service
Article 39 :
The provisions applying to inventions and technical improvement proposal of employees subject to private contractual relation, without prejudice to the privately agreed dispositions, shall apply, likewise, to the inventions and technical improvement proposals of employees employed in state owned enterprises and other public establishements/bodies and their affiliates whether with general or added or private budgets.
Inventions of the Armed Forces
Personnel
Article 40 :
The provisions relating to employees in public service shall apply, likewise, to inventions and technical improvement proposals made by members of the armed forces.
Inventions of University Staff
Article 41 :
In derogation from the provisions of Articles 40 and 41, inventions made by the teaching staff of universities during their scientific studies at universities or higher schools shall be free inventions.
Concerning such inventions the provisions of Articles 31, 32 and 34 shall not apply. The notion of university teaching staff shall be determined in accordance with the provisions the Law on Higher Education.
Where the subject educational body has made available specific equipment and means for the research work having led to the invention, the university teaching staff shall notify the educational body, in writing, of the exploitation of the invention and shall, upon request of the body, specify the modality of exploitation and the amount of proceeds achieved. Within three months of such written notification, the educational body may demand a reasonable share of the proceeds from the invention. The amount of such share shall however not exceed the expenses supported by the body.
PART FOUR
Granting a Patent
SECTION ONE
Application for a Patent and Requirements thereof
Application for a Patent and
Annexes
Article 42 :
In order to obtain a patent, it shall be necessary to file an application complying with the form and scope of the Regulation and comprising the following;
a/ application petition;
b/ description specifying the invention;
c/ claim(s) covering the elements of the invention for which protection is sought;
d/ drawings referred to in the description, in the claim(s);
e/ abstract;
f/ receipt showing the payment of the application fee.
Where a patent-of-addition is to be filed in accordance with Article 121, the number of the (main) patent or the application for patent to which the addition refers shall be indicated.
The validity of an application for patent shall be subject to payment of the application fee prescribed in this present Decree-Law within seven days, at the latest, from the date of filing of the application, without the need to extend (to the applicant) any further notice to this effect. The application shall be deemed to have been withdrawn where the application fee remains unsettled within such time-period.
Any documents submitted to the Institute simultaneously with the filing of the application or thereafter shall be in accordance with the provisions of the Regulation of the present Decree-Law.
The description and claim(s) may be filed in English, French and German simultaneously with the application. A term of one month shall be given for translating them into Turkish and filing the Turkish translation before the Institute or an authority designated by it without the need to extend (to the applicant) any further notice to this effect. For the filing of the corresponding Turkish translation, the fee set forth in the Regulation shall be paid.
Fixing the Date of Application
Article 43 :
The date of filing of the application for patent becomes definite (is fixed) on the date, hour and minute when the applicant files before the Turkish Patent Institute or the authority designated by same the following documents drawn up in the form specified in the regulation :
a/ an application petition, a description and one or more claim(s) in Turkish or in one of the foreign languages indicated in Article 42, even when they do not meet the formal requirements set forth in this present Decree-Law and in the regulation.
b/ drawings referred to in the description, in the claim(s).
Where during the examination of the application for patent, the subject matter of the invention for which patent is requested is amended/changed, whether in whole or in part, so as to expand out of the contents of the application as initially filed, the date of application shall be deemed to be the date when the petition for such amendment/change is filed.
Obligation to Indicate in the
Application the Inventor
Article 44 :
The inventor shall be indicated in the application. Where the applicant is not the inventor or the sole inventor, the applicant shall declare in the application how he has acquired, from the inventor or inventors the right to apply for a patent.
Where the inventor is not mentioned or no declaration is made as to how the applicant acquired the right to apply for a patent, the examination of the application shall not be initiated.
Unity of the Invention
Article 45 :
The application for patent consists either of one single invention or of a number of inventions realized around a principal inventive idea of general nature and related to each other by said principal inventive idea.
Applications not conforming to Paragraph one of this present Article are divided into divisional applications in accordance with the provisions set forth in the Regulation.
Each divisional application shall have the same date of filing as the initial application provided that their subject matter remains within the scope of same. Where priority is claimed for the initial application, each divisional application will benefit from the priority right or rights claimed for the initial application.
Explicitness of the Description
Article 46 :
The description must be written in a sufficiently explicit and comprehensive manner so as to enable a person skilled in the technical field of the subject matter to implement the invention.
Where the invention pertains to a microbiological process and the related microorganism is not accessible to those interested, the description shall only be deemed to fulfill the requirements specified under the Paragraph one of this present Article provided the following conditions are met:
a/ the description contains the information regarding the characteristics of the microorganism;
b/ the applicant has deposited, no later than the date of filing the application, a culture of the microorganism with an authorized institution, established in accordance with international conventions.
The said institution shall be mentioned in the publication in compliance with Paragraph two of Article 55.
Patent Claims
Article 47 :
The application should contain one or more claims.
The claim(s) shall define the elements of the invention for which protection is sought. Each claim shall be explicit and concise to the point. The claim(s) shall be based on the application. The claim(s) may not extend beyond the subject matter of the invention as specified in the description. The claim(s) shall be written/prepared in compliance with the provisions of the Regulation.
The applicant may write/prepare the claim(s) in compliance with the provisions of the Regulation or in another form.
Abstract
Article 48 :
The abstract serves the sole purpose to provide technical information and may not be used for other purposes.
Especially, the abstract may not be used to define the scope of the protection and to delimit the boundaries of the State-of-the-Art. The Institute may modify the abstract where it considers it necessary for providing better information to third parties. Such modification shall be notified to the applicant.
Priority Rights arising from
applications filed according to International Conventions
Article 49 :
Natural or legal persons who are nationals of any State party to the Paris Convention, or when not nationals, who are domiciled or have an active business in these States, shall enjoy a right of priority of twelve months as from the date of filing an application for the grant of a patent or a utility model certificate before the authorised bodies of these States, for the purpose of filing an application for obtaining a letter’s patent or utility model certificate in Turkey.
Priority rights not exercised within the time-period of twelve months prescribed in Paragraph one of this present Article are considered to be void.
Where an application claiming priority, within the time-period prescribed in Paragraph one of this present Article, is filed, all applications filed by third parties and patents and utility model certificates granted therefor in respect of the patent or utility model certificate subject to the priority right, shall be declared invalid as from the date of priority right.
Natural or legal persons who are nationals of countries benefiting from the reciprocity principle prescribed in Paragraph two of Article two shall enjoy, within the provisions of this present Article, priority right.
Where a natural or a legal person who is a national of a state party to the Paris Convention has filed a valid application in a state not party to the Paris Convention he shall enjoy within the provisions of this present Article priority right in respect of that application.
The priority right shall have effect as of the date of filing the application for patent or utility model certificate.
Rights
Arising from Display in Exhibitions
Article
50:
Natural or legal persons specified in paragraph one of Article 49 who have displayed the products subject to a patent or a utility model certificate at national or international exhibitions held in Turkey or at, official or officially recognized, national or international exhibitions held in the states party to the Paris Convention, are entitled to claim a right of priority when the application for a patent or utility model is filed within a period of twelve months from the date of the display in the exhibition.
Where the product constituting the subject matter of a patent or utility model certificate has been displayed at the exhibition, before the official opening date, right of priority shall run from the date when the product was first displayed at the exhibition. The paragraphs two and three of Article 49 shall apply by analogy.
The authorized organs of the exhibitions held in Turkey, in accordance with paragraph one of this present Article, shall supply evidence to the persons displaying their products subject to a patent or a utility model certificate, by specifying the product subject to a patent or a utility model certificate clearly and comprehensively, including at least four photographs identifying same from the sides, the front, the rear and the bottom and indicating the type of the product and the date when same has been, visibly, displayed at the exhibition and the official opening date of the exhibition.
In order to enjoy the priority right of a product exhibited in foreign countries, it shall be necessary to submit evidence as specified in the third paragraph and to be obtained from the relevant authorities of the country where the exhibition was held.
Products subject to an application for patent or a patent or a utility model certificate cannot be prevented from being displayed at an exhibition held in Turkey and from being returned to their country of origin after the closing of the exhibition.
Where more than one applications have been filed for a patent or a utility model certificate with subject matter identical or similar to a product displayed in an exhibition, the applicant who first displayed such a product, and if displayed at the same time, the one who filed his application, firstly, shall enjoy the right of priority.
Effect
of Priority Right
Article
51:
The effects of the priority rights ensuing from Articles 49 and 50, shall arise as of the date of filing of the application wherein priority is claimed.
Claiming
and Evidencing of Priority
Article
52 :
An Applicant desiring to benefit from a right of priority shall file a claim of priority simultaneously with his application or within two months as from the date of filing his application. Where the right of priority is not documented within three months of the date of filing of the application, the claim to benefit from such priority shall be deemed not to have been made.
Multiple priorities may be claimed regardless of the fact that the application for a patent filed in foreign countries originates from different countries.
Multiple priorities may be claimed in an application for patent.
Where multiple priorities are claimed, the time-period runs from the earliest date of priority. Where one or more than one priorities are claimed, the right of priority shall comprise in its scope only those aspects contained in the application(s) originating the right of priority.
Even though the claims of the application, the priority originates from do not include certain elements of the invention, in the application filed claiming the priority of such an application, the priority right may still be granted for such claims provided, such elements (of the invention) are, explicitly and unequivocally indicated in the description of the application the priority originates from.
SECTION TWO
Examination of an Application
Rejection of an application
Article 53 :
The date of filing of an application becomes definite (is fixed) provided the application complies with the conditions set forth in Article 43 and provided the application fee is paid. The Institute shall reject an application and shall notify the interested party (applicant) of its decision of rejection when the application does not comply with the conditions set forth in Article 43 or when the application fee is not paid within seven days (following the date of filing of the application) or when the Turkish translations of the description and claim(s) submitted in one of the foreign languages mentioned in Article 42 are not filed within the subsequent one month.
Examination as to Formal
Requirements,
Article 54 :
Upon the date of filing of an application becoming definite, the Institute shall examine the compliance of the application to the formal requirements set forth in Articles 42 to 52 and in the Regulation.
The compliance of the specification, claim(s) and drawing(s) to the patentability requirements is not comprised to be within the scope of this examination. The Institute shall examine the subject matter of the application, as of Articles 6 and 10 of this present Decree-Law, to determine whether or not it consists of an invention which is subject to patent protection and which is applicable in industry. The Institute after receiving/hearing the opinion to the contrary of the interested party (applicant) and, duly motivating its decision, shall reject the application when the invention, subject matter of the application, obviously and unequivocally lacks the characteristics of novelty and applicability in industry.
Where the examination results in that, the application suffers formal deficiencies, in terms of the provisions of Article 53, or that its subject matter is not an invention subject to patent protection, the examination procedure is suspended and the applicant is requested to remedy the deficiencies or to notify the Institute his objections within the period set forth in the Regulation.
In the course of this procedure, the applicant may amend the claim(s) or divide the application into more than one divisional application(s).
The Institute shall reject the application, in whole or in part, in consideration of the claim(s), when it does not find acceptable the objections raised against its decision, according to which, the subject matter of the application is not an invention subject to patent protection or when the existing deficiency has not been remedied, in compliance with the conditions and formal requirements as set forth in the Regulation.
Where the examination conducted by the Institute according to this Article shows that there is no deficiency as to formal requirements or when any such deficiency has been duly remedied and completed in accordance with the requirements of this present Decree-Law, the Institute shall inform the applicant that the request, if not filed earlier, for conducting the Search on the State-of-the Art, is to be filed within the time-period set forth in Article 56.
Publication of an Application
Article 55 :
The application shall be open to public inspection upon its publication, in accordance with the provisions of the Regulation, after the elapsing of a period of eighteen months from the date of filing of the application or, if any, from the date of the priority claimed. The application is published subsequent to the conclusion by the Institute of the examination pertaining to the compliance with the formal requirements as of the provisions of Article 54 and subsequent to the filing, according to Article 56, of the request for conducting the Search on the State-of-the-Art.
The applications are published, periodically in the relevant Bulletin, to include the particulars of same under the form/modality and conditions as set forth in the Regulation.
At the request of the applicant, the application is published in accordance with the conditions set forth in this present Article, even when the period of eighteen months mentioned under paragraph one of this present Article has not expired.
Request
for Conducting Search on the State-of-the-Art and Payment of the related Search
Fee
Article 56 :
Within 15 months from the date of filing of the application, the applicant shall file before the Institute the request to conduct the Search on the State-of-the-Art and shall pay the relevant fee.