Turkish Patent Legislation in the Perspective of the Pharmaceutical Industry

The Patent System

Turkey is a member state of EPC and PCT, and therefore national patents can be obtained via both routes. National patents can also be obtained via the route of a direct national filing with or without priority under Paris Convention, which is governed by the provisions of IP Law No: 6769. Turkish Patent & Trademark Office is the competent authority for receiving applications, grant of patents and examining post-grant oppositions.

1.1. Compatibility of the National Law with International Treaties

According to Art. 90 of the Constitutional Law, international treaties prevail if there happens that such treaties contradict with the national law. Therefore, for those patents obtained through the EPC and PCT routes, corresponding international treaties shall be applicable in case of a confliction with the IP Law No: 6769. However, EPC and PCT have no influence on direct national filings.

Turkish IP Law has certain incompatibilities with EPC.

For instance, Art. 82(6) – IP Law provides general provisions corresponding to Art. 53(c) EPC regarding medical use of the substances or compositions. However, there is no specific provision for first and second medical use of the known substances or compositions as set out in Art. 54(4) and Art. 54(5) EPC.

Another incompatibility with the EPC appears in patentability of the inventions in biotechnology and biological materials such as sequences of genes. The national law doesn’t contain specific provisions corresponding to Rule 27 (Patentable biotechnological inventions) and Rule 29 (The human body and its elements) EPC.

As mentioned above national patents obtained by the EPC route wouldn’t be affected from lack of a proper legal basis in the national law. In practice Turkish PTO accepts also applications and grants patents for medical uses and biotechnology inventions for the direct national filings in consideration of the standards of EPC and 98/44/EC regulation of the EU. Claims formulated in Swiss type or in a way with compliance to Art. 54(4) and Art. 54(5) EPC are both acceptable. It would be advisable for the direct national filings to use both formats as a safeguard against post-grant invalidity proceedings.

1.2. Obligation to Use and Compulsory Licencing

Art. 130 of IP Law 6769 prescribes that;

Patent proprietor or his successor in title shall have the burden to practice the invention. The invention must be put into practice within three years after publication of grant in the official bulletin, or within four years after filing date of the patent application, whichever expires later.

The only serious consequence of not using the invention in Turkey is compulsory licencing. Even in this case, obtaining compulsory licence is not that easy and it can be cancelled immediately after the patentee removes the circumstances justifying the compulsory licence. Enforcement of a patent is not affected due to lack of a use in Turkey.

1.3. Patent Term

Patents confer a protection term of 20-years starting from the filing date. SPCs and any other extensions are not available under the national law.

1.4. Post-Grant Oppositions and Third Party Observations

Post-grant oppositions against Turkish patents are available under the IP Law within 6-months after publication of grant in the official patent bulletin. European patents validated under Art. 65 EPC are not open to the post-grant opposition proceedings. Third party observations can be filed after publication of the patent application during the procedure of the pendency term.

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