Priority Right in Turkish Patent Law

Sultan Ballı

Partner

Introduction

As a general rule, industrial property rights provide territorial protection, meaning that a patent granted in one country is only enforceable in that specific country. Therefore, individuals seeking protection for their invention in multiple countries must file separate national applications in each of those countries and obtain patents accordingly. The right to claim priority in other countries based on an initial application filed in one country is referred to as the right of priority.

The Industrial Property Law No. 6769 (“IPL”) recognizes two types of priority rights:

1. Application priority, based on patent applications filed with national IP offices.

2. Exhibition priority, based on the public display of an invention at an exhibition.

   
   

I. Application Priority

Application priority is regulated under Article 93/1 of the IPL:

“Any person or successor who has duly filed an application for a patent or utility model in any state that is a party to the Paris Convention or the Agreement Establishing the World Trade Organization, including Turkey, shall benefit from the right of priority when filing an application for the same invention in Turkey, provided that the application is made within twelve months from the date of the first application.”

Additionally, pursuant to Article 93/1 of the IPL, any national application made in compliance with the national legislation of a state party to the Paris Convention or the Agreement Establishing the World Trade Organization, as well as any application deemed equivalent under bilateral or multilateral agreements established by such states or under the IPL, shall be recognized as granting priority rights.

The priority period for patents or utility models is twelve months from the date of application. If not exercised within this period, the priority right expires.

II. Exhibition Priority

Exhibition priority is regulated under Article 93/6 of the IPL:

“Real or legal persons who exhibit a product covered by a patent or utility model at national or international exhibitions held in Turkey, or at official or officially recognized international exhibitions held in countries party to the Paris Convention, shall benefit from the right of priority to apply for a patent or utility model in Turkey within twelve months from the date of exhibition.”

The priority period for exhibition priority is also twelve months from the date of the exhibition. This period begins on the date the invention is displayed at the exhibition. If not exercised within this period, the priority right expires.

III. Exercising and Effects of the Priority Right

The priority right can only be exercised upon the request of the applicant. If the applicant intends to benefit from this right, it must be explicitly stated in the patent application. If no priority claim is made, TÜRKPATENT (Turkish Patent and Trademark Office) cannot grant the priority right ex officio.

A duly filed national application, regardless of its outcome, is sufficient to establish the application date as the priority date.

Furthermore, a subsequent application covering the same subject matter as an earlier application filed in the same state shall only be recognized as the first application for priority purposes if certain conditions are met. These conditions include:

• The earlier application must not have been made public as of the date of the subsequent application.

• The earlier application must have been withdrawn, deemed withdrawn, or rejected without granting any rights.

• The earlier application must not have formed the basis for a priority claim.

In such cases, the earlier application does not serve as a valid basis for a priority claim.

The priority date has the same legal effect as the filing date in terms of the novelty assessment and the right to obtain a patent. During the novelty examination of a patent application, the priority date is considered when determining the state of the art. Likewise, if the same invention is independently created by multiple persons, the priority date is decisive in determining the right to obtain a patent.

As outlined above, the priority right provides significant advantages to applicants. If the necessary conditions are met, claiming priority is crucial for patent applications to secure the broadest possible protection.

Feel free to contact us if you need any further information and assistance on Turkish patent law.