As per article 107(2) of the Industrial Property Code numbered 6769 (“Code”), the applicants or holders of a patent may request the re-establishment of rights if they, despite taking all due care required by the circumstances, have failed to observe a time limit set by the Turkish Patent and Trademark Office (“Office”), and this failure has caused the patent application to have been rejected, or to have been withdrawn, or the invalidation of the patent or any other loss of right.
Deadline for the Request
The request for the re-establishment of rights must be submitted to the Turkish Patent and Trademark Office within two months from the removal of the cause of non-compliance with the time limit, but no later than one year of the expiry of the unobserved time limit.
The request should be filed with a petition and the relevant document (when applicable, with a Turkish translation) evidencing the cause of non-compliance. In 2024, the official fee for the request of the re-establishment of rights is TRY 5,827.
Admissibility of the Request
Neither the Code nor any secondary legislation explains which causes might be considered as admissible for the re-establishment of patent rights. The cause of non-compliance should be evaluated separately in each circumstance. However, the examples provided in the Guidelines for Examination of the European Patent Office[1], such as organizational upheavals, sudden serious illnesses or a mistake of a monitoring system may also be accepted as an admissible ground for the re-establishment of patent rights in Turkey as well.
Even if an admissible cause of non-compliance with the time limit is evidenced, it should be also shown that all due care required by circumstances has been taken.
If the Office decides upon the re-establishment of rights, the respective decision is published in the Official Patent Bulletin. If the request is rejected by the Office, it is possible to file a cancellation action against the final decision of the Office before the Ankara Civil Court of Intellectual and Industrial Property Rights.
Situation for PCT National Phase Entries and European Patent Validations in Turkey
The Office accepts that PCT applicants who failed to file national phase entry for Turkey in the prescribed time limit (30 months from the priority date or 33 months with an extension fee from the priority date) may file a request for the re-establishment of rights.
With regards to European Patent validations in Turkey, the Office does not accept that European patent holders can request a re-establishment of rights if they fail to file the validation application within the time limit (within 3 months from the publication of the grant). The Office’s approach is based on the claim that Article 107 of the Code regulating the re-establishment of rights is only applicable to applications and patents which have a national effect in Turkey, and unless a European patent is validated in the prescribed time limit, it has no such effect. However, this argument may be challenged before the Turkish courts by claiming that the EPC contains provisions (i.e., Articles 64, 66 and 67) which indicate otherwise, and Article 90(5) of the Turkish Constitution provides that when national laws conflict with international agreements (which Turkey is a party to) concerning fundamental rights (e.g., property rights), the provisions of international agreements shall prevail.[2]
For further queries, please contact:
Dogukan Berk Aksoy, LL.M.
Attorney at Law | Trademark Attorney | Patent Attorney
T: +90 312 969 09 63
[1] European Patent Office, Guidelines for Examination, Merit of the Request (https://www.epo.org/law-practice/legal-texts/html/guidelines/e/e_viii_3_2.htm last accessed on 14 January 2022) [2] Senem Kayahan, Avrupa Patentlerinin Validasyonları İçin Hakların Yeniden Tesisi Hakkı, Patent ve Marka Vekilleri Derneği (PEM) (https://pem.org.tr/Senem_KAYAHAN_PEM-MAKALE-(AVRUPA_PATENTLERININ_VALIDASYONLARI)-son.pdf last accessed on 14 January 2022)