Re-establishment of Rights for European Patent Validations in Turkey: An Assessment in Light of TPTO Practice and Judicial Decisions
- Aksoy IP
- 3 days ago
- 7 min read
Turkey is a contracting state to the European Patent Convention (“EPC”). Whether re-establishment of rights under Article 107 of the IP Code is available when a European patent granted by the European Patent Office (“EPO”) is not validated in Turkey (i.e., the translation is not filed) within 3 months from the publication of the grant has been a matter of ongoing debate.
As of the date of this article (May 2025), the practice of the Turkish Patent and Trademark Office (“TPTO”) is to reject requests for re-establishment of rights regarding European patent validations.
In contrast, Turkish courts have begun to annul TPTO decisions, holding that re-establishment of rights must also be available for validations of European patents. This article examines the current legal situation in light of TPTO practice and case law.
Validation Process
Validation is the process of submitting the Turkish translation of the specification (description, claims, abstract, and drawings) of a European patent to the TPTO.
According to Article 12(1) of the Regulation on the Implementation of the EPC in Turkey, this translation must be filed within 3 months from the date on which the mention of the grant is published in the European Patent Bulletin (i.e., B1 document publication).
Re-establishment of Rights under the IP Code
According to Article 107(2) of the IP Code, where an applicant or patent holder, despite exercising all due care required by the circumstances, fails to observe time limits prescribed by the TPTO, and such failure leads to the refusal of the application, it being deemed withdrawn, the revocation of the patent, or other loss of rights, a request for re-establishment of rights may be filed.
This request must be submitted within 2 months from the removal of the cause of non-compliance and in any case within 1 year from the missed deadline. It must be accompanied by the relevant fee, an explanation of the circumstances, and supporting documents.
The IP Code does not specify which reasons are acceptable for such requests, so each case is assessed individually. The EPO Guidelines may serve as guidance in this context.
It should also be noted that Article 107 does not exclude European patent validations from its scope. Although the article’s explanatory note does not explicitly mention validation, it refers to the EPC as its basis.
Indeed, Article 107 of the IP Code structurally mirrors Article 122 of the EPC.
TPTO Practice
The TPTO automatically rejects re-establishment requests related to validations of European patents that were not completed within the deadline, without substantive examination.
In other words, the TPTO does not assess whether the applicant had valid reasons or exercised due care.
The Patent Department justifies this based on Article 12 of the EPC Implementation Regulation. According to its interpretation, European patents not validated in time are deemed void ab initio and do not attain national status. Hence, re-establishment is considered legally impossible.
Appeals before the Re-examination and Evaluation Board (“Board”) are also rejected. The Board argues that since the validation deadline was missed, no rights ever existed, and therefore no rights could have been lost.
The Board refers to EPC Article 65(3), which allows member states to consider patents void if not validated within the set period, and argues that Turkey exercised this option in Article 12 of the EPC Implementation Regulation.
Turkish Judicial Practice
In lawsuits before the Ankara Civil Courts for Intellectual and Industrial Property Rights challenging final TPTO decisions, courts had historically issued differing judgments.
However, recent decisions from the Regional Courts of Appeal and the Court of Cassation have annulled TPTO’s refusals.
These courts apply Article 107 directly and hold that re-establishment of rights must be assessed, even if the validation was not completed on time.
Indeed, in a decision dated 20.11.2023, the Court of Cassation upheld a judgment by the Ankara Regional Court of Appeal based on the following reasoning:
“Considering the contents of the file, the available evidence, and the grounds for appeal, the court’s factual and legal assessment was found to be legally sound both in terms of procedure and substance. In accordance with Provisional Article 1(2) of the Industrial Property Code No. 6769, the provisions in force at the time the application entered the national phase shall apply to the dispute in question. The court’s reasoning that the request for re-establishment of rights under Article 107(2) of the said Code should be accepted was found to be legally valid. Indeed, pursuant to Article 65 of the EPC, an application entitled to a filing date shall acquire the status of a national application in the designated states. Therefore, a ruling was required to reject the substantive grounds of appeal filed by the representatives of the defendants and the TPTO.”[1]
Likewise, in a separate decision dated 12.01.2024, the Ankara Regional Court of Appeal referred to the aforementioned Court of Cassation decision and ruled as follows:
“Considering the contents of the file, the available evidence, and the grounds for appeal, the court’s factual and legal assessment was found not to violate the law in terms of either procedure or substance. Pursuant to Article 90(5) of the Constitution of the Republic of Turkey, international agreements duly enacted shall have the force of law. Therefore, the EPC must also be taken into account in resolving the dispute. Article 64 of the EPC provides that, from the date of publication of the European patent specification, the patent shall confer on its proprietor in each contracting state the same rights as would be conferred by a national patent granted in that state. Article 66 further provides that a European patent application that has been accorded a filing date shall be equivalent to a national application in the designated states. Article 12 of the Regulation on the Implementation of the EPC in Turkey, which governs the submission of Turkish translations of European patents, cannot contradict the rule set out in Article 64 of the EPC. For these reasons, a European patent that is intended to be validated in Turkey shall be deemed a Turkish patent once the mention of the grant has been published in the European Patent Bulletin and shall benefit from the provision of Article 107 of the IP Code. The contrary position adopted by the TPTO was found to be legally unfounded. The objections raised by the defendant’s attorney regarding the composition of the expert committee and the expert report were also found to be unsubstantiated. As such, and in line with the Court of Cassation’s decision dated 20.11.2023, numbered 2022/2917 E., 2023/6627 K., a ruling was issued to reject the appeal on substantive grounds.”[2]
Moreover, in another decision dated 20.09.2024 by the Ankara Regional Court of Appeal, the following was stated:
“Considering the contents of the file, the available evidence, and the grounds for appeal, the court’s factual and legal assessment was found not to violate the law in terms of either procedure or substance. For Article 107(2) of the IP Code No. 6769 to apply, there must be a valid patent application or patent in Turkey, and a loss of rights must have occurred despite all due care having been taken. The decision by the Re-examination and Evaluation Board did not address whether the applicant’s justification met the due care requirement. The application was rejected on the ground that there was no valid patent application or patent. However, the European patent application should have been treated as an application before the TPTO. The requirement of a valid patent or patent application under EPC Article 122 and IP Code Article 107(2) must be interpreted broadly. Even if the patent later became invalid due to failure to meet deadlines, the TPTO should have accepted that there existed a valid patent or patent application and examined whether the remaining conditions under Article 107(2) were met. Therefore, a ruling was issued to reject the appeal filed by the defendant’s attorney on substantive grounds.[3]
Assessment and Conclusion
Although EPC Article 65(3) allows member states to consider unvalidated patents as void, the TPTO’s restrictive approach is not aligned with recent court decisions and constitutional principles.
Our assessment is as follows:
No legal exclusion exists in the IP Code: Article 107 does not limit the availability of re-establishment to national filings only. Under Article 35(2) of the Constitution, property rights may only be limited by law. A regulatory restriction exceeds this authority.
Regulations cannot override laws: Under Article 124 of the Constitution, administrative regulations must not contradict statutory law. Since Article 107 does not exclude validations, the EPC Implementation Regulation cannot validly impose such a restriction.
Article 107 should be interpreted broadly: The phrase “any loss of rights” signals a broad application. Court decisions have consistently criticized narrow interpretations.
EPC Articles 64, 66, and 67 confirm legal effect prior to validation: Even before grant, EP applications have provisional protection in designated states. Validation is a procedural requirement, not a new application.
Even though the EPC Implementation Regulation provides that failure to validate renders the patent void ab initio, there is no provision in the IP Code that prohibits a re-establishment request in this case.
If the reason for missing the deadline is legitimate, the right to request re-establishment must be preserved.
This position aligns with the purpose and system of both the EPC and the IP Code, which aim to protect substantive rights where due care was exercised.
In conclusion, the TPTO should reconsider its categorical refusal of re-establishment requests for European patent validations, and comply with binding court precedents and constitutional safeguards.
For further queries, please contact:
Dogukan Berk Aksoy, LL.M.
Attorney at Law | Trademark Attorney | Patent Attorney
T: +90 312 969 09 63
Evren Firat Goklu
Attorney at Law | Trademark Attorney | Patent Attorney
Furkan Mert Ozkaynak
Legal Trainee
[1] 11th Civil Chamber of the Court of Cassation, decision numbered E. 2022/2917 and 2023/6627 K. Decision Date: 20 November 2023.
[2] 20th Civil Chamber of the Ankara Regional Court of Appeal., E. 2021/1826 K. 2024/57 Decision Date: 12 January 2024.
[3] 20th Civil Chamber of the Ankara Regional Court of Appeal., E. 2022/1189 K. 2024/1440 Decision Date: 20 September 2024.