FAQs on Use/Working Requirement for Patents in Turkey

The period for using or working a patented invention is three years as from the publication of the patent grant in the Turkish Patent Bulletin (from the date of the publication of the decision to grant in the European Patent Bulletin in the case of European patent) or four years as from the application date of the patent, whichever is the later. This period is especially important in respect of the compulsory requests, as it is not possible for third parties to request compulsory license before the expiration of this statuary period.

The due date for use is actually relative since the actual due date for use is calculated considering the date of request for a compulsory license. In other words, the use can be performed any time during the lifetime of the patent but should be performed before the request for compulsory licence for avoiding any risk of compulsory license if three years period have already passed. For instance, if the use has been performed at a time after 3 years as from the publication of the patent grant in the Patent Bulletin but before the date when the request for compulsory license is filed, the use requirement has been deemed to performed.

The third parties can ask compulsory license on the basis of one of the followings;

• patented invention has not been put into use within 3 years from the grant or was interrupted to be used for 3 years,
• it has not been seriously and actually attempted to put the patented invention into use or,
• the actual use is not sufficient to cover the needs of the national market.

Non-use or use declarations, as prescribed by the Implement Regulation (Rule 117 (7)) but not the Law, should be filed within three years as from publication of the decision to grant patent in the Turkish Patent Bulletin (from the date of the publication of the decision to grant in the European Patent Bulletin in the case of European patent) or four years as from patent application date, whichever is the later. The use and non-use declarations filed for the patents are published in the Turkish Official Patent Bulletin. The patents in respect of which no use is declared are also published in the Turkish Official Patent Bulletin.

The Implementing Regulation, in general terms, specifies that the market conditions and circumstances beyond the control and will of the patentee is considered in assessing the use. Technical or economic or legal reasons of an objective nature, such as marketing authorization, compliance with standards, need for new applications to be made in different fields are to be deemed to constitute legitimate excuses for the inability to put the patent to use. These reasons in the nature of constituting obstacles for using the patented invention are accepted as reasons beyond the control and will of the patentee.

The Regulation does not prescribe any positive or negative effect on patent rights if use or non-use declaration is not filed within the prescribed due dates. This point is not sufficiently clear but we, as many other Turkish IP professionals, understand that the main purpose for requiring to file non-use or use declarations is
to keep the third parties informed of the fact whether the patent is being used or not, on what grounds the use has been or has not been performed, or the legitimate reasons for non-use as generally defined in the Regulation, and
to encourage the patent holders to use their inventions or to grant licenses if they do not use their patented inventions directly in Turkey.

As for the nature of the declarations, a simple declaration of use or non-use is sufficient. The declarations can only be submitted to the Turkish Patent and Trademark Office electronically as signed by the rights owners or the Turkish patent attorneys in the registry of the patents. In the case of the foreign entities located abroad, the declarations can only be submitted by the patent attorneys in the registry.

In the case of use, no evidence of use is required; therefore, simple declarations are enough to perform the requirement of declaration of use. In any event, it is recommended that the rights owners keep the evidence of use in their records against possible requests from third parties to substantially prove the use when there is any contention for compulsory license in the future.