Declaration of Use and Compulsory License

The new IP Law (the “Law”) numbered 6769 abolished the provisions on “The use requirement of patents,” and “The evidence of use” of the Decree Law Pertaining to the Protection of Patent Rights. The Law now focuses on the requirements of use for patents within the provision of a Compulsory License.

Accordingly, a patent owner must make use of the patented invention within three years following publication of its granted decision in the Official Bulletin (‘the Bulletin’), or within four years from the date of its application, whichever is the latest. The patents that are not declared to be used within the period prescribed in the Law in accordance with Article 117/8 of the Regulation on the Implementation of IPL are published in the Bulletin. The Bulletin is a type of announcement that is made when a patent has not been used. Third parties are then aware that they may request the license over such patent.

When assessing actual ‘use,’ market conditions and conditions outside the control of the patent owner, such as the need for pharmaceutical marketing authorisation, compliance with standards, and the lack of new applications in alternative fields, should be considered. At the end of the prescribed terms, any interested person may request a compulsory license on the grounds that the patented invention is not being used, no serious and real measures have been taken to make use of the patented invention, or that the level of the current use does not meet domestic demand. The same applies to cases where no use of a patent has been made for more than three years without justified reason.

Additionally, patent holders are requested to file a declaration of use of the patent with the Turkish Patent Office (the “Office”). The Regulation on the Implementation of the Law rules that the declaration of the use of a patent must be submitted to the Office in accordance with the same legal terms as prescribed in the Law. In 2020, the Office simplified the said declaration by marking the button that the patent is or is not used in its online system. Patents that have not been used within this period will be published in the Bulletin. The publication, however, does not lead to any direct benefits or negative consequences. Even if a patent is not listed as a non-used patent, a third party may still request a compulsory license, claiming that the patent is not used, or that no serious and real measures have been taken to make use of the patented invention, or that the level of current use does not satisfy domestic demand. Even if the patent is listed, it does not mean that a compulsory license will be automatically granted.

When requesting a compulsory license, court procedure must be followed, and the declaration of a patent’s use filed with the Office may only be used as an indication of the intention to use it. The lack of such declaration does not affect the court procedure as the use may also be proven during court proceedings.

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