Intellectual Property Rights
Patents and Utility Models
Definitions
What is an invention?
The invention is defined as the solution to a specific technical problem. The concept of 'invention' forms the basis of the patent law. The inventions are protected through the patent /utility model certificate for the purpose of encouraging the invention activities and the attaining technical, economic and social progresses by means of application such invention to the industrial sectors.
What is patent?
Patent, granted to the inventor for an invention, is one of the industrial property rights and it grants the right to prevent the production, utilisation or sale of the invention by others without permission of the inventor.
What is utility model?
The utility model is a system which provides protection of the novel not only in Turkey but also all through the world and industrially applicable inventions. The procedures for the issuance of a utility model certificate are much more convenient than the patent certificates in terms of time and expenses. It has been considered that the simple and inexpensive procedural proceedings for utility models may encourage especially the small and medium scale enterprises (SMEs) and research institutions to make an invention and apply such inventions to the industry. Besides, particularly today, there exists a risk for the imitation of the inventions realised by the small and medium scale industrialists by the competitors in almost the same manner. Even if an invention is small and modest, the issuance of the utility model certificate for such an invention will serve as protection of the SMEs and their perpetuation economically.
What are the differences between a patent and utility model?
|
Patents |
Utility Models |
|
| Novelty |
+ |
+ |
| Inventive Step | + | - |
| Industrial Applicability | + | + |
| Methods and the products resulted from such methods | + | - |
| Chemical Substances | + | - |
| Search | + | -* |
| Examination | + | - |
| Publication | + | + |
| Protection Period | 20/7 years | 10 years |
*to be made if claimed by the Applicant
As can be seen from the table above, no inventive step is sought for the utility models. In addition, no utility model protection is possible for the methods, the products resulted from such methods and chemical substances.
Novelty: The invention should not be explicitly expressed in written form or in any other means or used in the manner to be accessed by the people in all around the world.
Inventive Step: The invention should not be obvious to a person skilled in the field of the invention.
Industrial applicability : the invention should have the ability of practical application rather than theory.Issuance of utility model certificate is in favour of the applicant in terms of cost and short process time and it is much easier due to the fact that no examination and search procedures are applied.
How to Apply for Patent and Utility Model?
The organisation exclusively authorised for the issuance of patents in Turkey is Turkish Patent Institute. The Institute not only grants patents for national applications but also for the regional and international applications namely, EPC and PCT applications, for which Turkey is a designated country. In addition, Turkish Patent Institute serves as a "Receiving Office" for the regional and international (EPC and PCT) applications from Turkey.
How to file and follow the patent procedures?
You may file and follow the patent procedures yourselves or through the patent attorneys registered to the Institute. The persons domiciled abroad can only be represented by patent agents. If you wish to file the application yourself and follow up the subsequent procedures, you are recommended to first obtain the "Guidelines for Patent / Utility Model Applications". You may order the application guidelines from the "Information, Documentation and Data Processing Department" of Turkish Patet Institute by post or the local documentation units free of charge or download the same from the internet.
The Guidelines explains how the application should be prepared and what the components of the applications are, together with the samples. You may submit your applications personally or by ordinary mail. Your invention is to be protected as of the date of application.
What are the necessary documents?
The necessary documents for patent and utility models are;
- Letter of application (Available at TPE internet website (www.tpe.gov.tr) (1 copy),
- Description explaining the invention,
- The claims which incorporates the technical characteristics of the invention alleged to be new, and sought protection,
- If required, technical drawings for the related invention,
- Abstract,
- Original certificate evidencing the payment of the application fee (bank receipt).
How does application process work?
If the patent application filed complies with the provisions in Article 42 of the Decree Law, the applicant is notified of the receipt of the application and it is filed into the records together with the result of the formal examination. The applications which fail to comply with the formal provisions, are granted an additional period of three months to complete the deficiencies. If the formal deficiencies are not fulfilled, it is deemed that the application is rejected.
In case it is observed that the application complies with the formal conditions subsequent to the formal examination process, then the applicant is notified that the Applicant is to file a request the Institute to search of the prior art and pay for the related fee within fifteen months from the date of application or from the date of priority claim if the applicant has made such a claim.
In case no search is requested or the search fee is not paid, it is deemed that the application is withdrawn. Upon request of the applicant for search, either Turkish Patent Institute or one of the contracted international search authorities prepares the search report.
The applicant is notified when the search report is ready. The applicant should inform within three months from the date of receipt of the notice, of its preference of one of the patent issuance systems, i.e. with or without examination. The applicant's option and the search report is published by the Institute. If the applicant fails to notify its option within a period of three months, it is deemed that the applicant prefers the system without examination. The application is either concluded with registration or refused subsequent to the issuance of the examination report (1-3 times), in case the system with examination is preferred. If the system without examination is preferred, a certificate without examination is directly granted.
What are the stages subsequent to issuance of the patent documents?
Without necessitating any notification, the applicant should pay the annual fees regularly to TPI during protection period. The annual fee should be paid in the manner that the anniversaries of the application date are the due dates. If not paid on time, it may be paid within a period of six months together with the additional fee. If it remains unpaid within the extended six months, the patent rights shall be terminated if it is patented, if it is an application, then the application will be deemed to be invalid.
The Protection System for the Inventions
There are three types of protection systems for the inventions in Turkey:
System without examination: It provides relatively limited protection period, which is 7 years, to the inventors whose financial capabilities are restricted but such system is cheap and speedy. For patents without examination, the applicant or the third parties may claim for examination prior to expiry of the 7-years period. If the examination is resulted positively, then the patent is to be granted for a period of 20 years from the date of application.
System with examination : The procedures take much longer but the patent with examination is much sounder and provides longer period of protection due to the fact that it is based on the examination report which shows patentability of the application (novelty, invention step, industrial applicability). The patent with examination provides 20-years protection . The protection period is, however, not extended.
Utility Model system: No examination and search procedures available. When compared with the other systems, the certificate is granted within a short time. However, upon request of the Applicant, search reports may be furnished for the applications for the utility models. In this system, the third parties may raise their oppositions within three months from the publication of the application. The oppositions are notified to the applicant. The applicant may notify its counter comments or change its claim or request a certificate despite the oppositions. The utility model provides 10 - years protection period. The protection period is not extended.
The subjects and inventions for which no patent is to be granted
According to the Decree Law numbered 551, the subjects which are not qualified as inventions are as follows:
- Discoveries, scientific theories, mathematical methods, Plans, methods, scheue/rules for performing mental acts, for conducting business/trading activity and for playing games.
- Literal and artistic works, scientific works, creations with aesthetic value, computer programs,
- The procedures with no technical aspects together with the compilation, arrangement, presentation and conveyance of the data,
- Operational and treatment methods applicable on the human and animal bodies together with the diagnoses on the human and animal bodies.
In addition to those listed above, no patent is granted for the inventions contrary to the general ethics and public order, flora and fauna species or the methods of vegetation or animal breeding,
What is Priority Right and what kind of benefits does it provide to the inventor?
If the invention is preferred to be protected in more than one country, the right for filing an application for the same invention in another country within a period of 12 months from the date of the initial patent application in any country is called as "Priority Right".
If any third party files an application for a similar invention between the date of the subsequent application based on the former application by the applicant in another country, such an application by the third parties can not be evidenced as a counter document. The Applicant claims for priority right which it wishes to enjoy together with the application or within a period of two months from the date of application. If the pertinent certificate of priority right is not submitted within a period of three months from the date of patent application, then it is deemed that no claim is made for enjoying from priority right.
Professional Assistance
Turkish Patent Institute provides general suggestions and assists the applicants. However, the preparation of the patent application is under the responsibility of the applicant or its attorney. You may seek professional assistance from the patent attorneys. You may access to the list in which the addresses and phone numbers of the attorneys through the internet site of TPI.
It is not a must to hire an attorney for the preparation of the application. However, the scope of the protection is affected by the way the descriptions and especially the claims are worded. For the purpose of preparing the patent documents, knowledge of both legal and technical issues will accelerate the procedures for the preparation of patent application.
Rights of the Patent Holder
Both criminal and civil litigation procedures are applicable against violations of the patented rights. Any patent holder whose rights arising from such patents are infringed can demand the following at the courts:
- Prevention of violation,
- Cease of violation,
- Removal of violation,
- Determination of violation,
- Compensation (Action for damages)
- Material compensation
- Compensation for mental anguish
- Compensation for creditworthiness
- Withholding
- Recognition of proprietary rights on the counterfeited products and tools
- Figurative changes and eradication
- Notification of the judicial resolutions to the parties concerned, announcement to the public and advertisement of the final verdict
- Precautionary measures
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Industrial Design
What is an industrial design?
An industrial design can be defined as the ornamental or aesthetic aspect of an article. The design may consist of three-dimensional features, such as the shape or surface of an article, or of two-dimensional features, such as patterns, lines or color.
Uses of industrial designs are very widespread and deals with a great variety of products of industry and handicraft items. Almost all products (technical and medical instruments, jewelry, housewares and electrical appliances etc.) we face in our daily life have their own designs for the pleasure of the human eye and technical facilities.
Industrial designs are visual keys for attracting the consumer preferences, therefore they make a great contribution to the commercial value of a product and increase its marketability.
What is protected?
To be protected under national law, an industrial design must appeal to the eye. This means that an industrial design is primarily of an aesthetic nature and the scope of protection shall not be extended to technical features of the article to which it is applied.
How can industrial designs be protected?
In order to have protection under spesific industrial design law, industrial designs must be registered by Turkish Patent Institute. Apart from this unregistered designs may be protectable under general provisions namely unfair competition law or copyrights, however the conditions of protection and the rights ensured will be significantly different.
As a rule, in order to grant a protection the design must be "new" and have an "individual character". "New" means that no identical or very similar design is known to have existed before. Nevertheless, a novelty search questioning the conditions of protection to be fulfilled, will not be carried out ex-officio by TPI. This examination will be under way upon opposition of the third parties.
Once an industrial design is registered, a registration certificate is issued. The term of protection is five years commencing from the filing date. It can be renewed for further four periods of protection up to 25 years.
What are the required documents for industrial design application?
- Application form (TPE-T-101)
- Representation of the products in which desihn is applied (drawings or photographs)
- Application and publication fees
- Description regarding the visual aspects of the design
- Power of attorney (In case of the applicant is a foreign national it is obligatory to assign a domestic representative
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Trademark
What is trademark?
Trademarks are the signs of the goods and services provided by any enterprise to make them
distinct from those provided by other enterprises. Words, letters, numbers, drawings, pictures,
figures, colours, logos, labels and a combination of these used specifically for the purpose of
distinction of such goods and services may be accepted as trademark. Turkish Patent Institute is the responsible authority in Turkey for trademarks.
What can not be registered as a trademark?
- The signs with no distinctive feature
- The signs similar or identical with the previously registered or already filed trademark falling in the similar or identical scope of the goods or services
- The signs indicating type, sort, feature, quality, objective, value, geographical sources for the goods or services for which registration is sought
- The signs which allow differentiation of any occupation and members of the artistic or commercial groups or used commonly by any commercial community along with the trademarks which include the names exclusively or principally
- The signs figuratively indicating the good or its essential value which is stemming from the natural structure or as a result of the technical processes of the product to be registered
- The marks misleading the public in view of the quality, quantity or place of production geographical source of the goods or services
- Country flags, military or dynasty armorial bearings submitted to WIPO International Bureau, seals and emblems of the countries and the international organisations
- Words and signs representing religious values and symbols
- Signs and words detrimental to public order and general ethical rules.
Who may apply for trademark protection in Turkey?
The protection for trademarks in Turkey is available to natural and legal persons who are domiciled or who have industrial or commercial establishments within the territory of the Turkish Republic, or to the persons who have application rights resulting from the terms of the Paris or Bern Conventions or the Agreement Establishing World Trade Organization. Natural or legal persons other than those referred above, who are nationals of states which accord legal and de facto protection to the nationals of the Turkish Republic shall enjoy according to the reciprocity principle trademark protection in Turkey.
What are the means of making an international application in order to enjoy trademark protection in Turkey?
The first way of making a trademark registration application is to file an application directly to Turkish Patent Institute. Those who are domiciled outside Turkey -except for those making an application through the Madrid Protocol- can only be represented by trademark agents who are authorized to act before the Institute.
What are the requirements for filing an application for trademark registration?
- The form completed on the computer or typed
- Representation of the trademark
- Receipt of filing fee
What is the examination procedure?
Trademarks Department of the Turkish Patent Institute carries out an examination system, which consists of examination for absolute grounds for refusal and also ex-officio examination for prior rights. If no grounds for refusal is found in the first examination, the application will be published in the monthly Official Trademark Bulletin. Third persons may file oppositions in 3 months time limit following the publication date of the Bulletin.
If there are no oppositions filed within the above mentioned time limit, the application will be registered in the Trademark Register and it will be published in the Official Trademark Gazette. If the application is refused totally or partially in the first examination, the applicant may lodge an appeal to the Institute in 2 months time limit. In this case, the application should be re-examined regarding the appeal. If the appeal is found acceptable, the application will be published totally or partially in the Bulletin, this means that the application may be the subject of a further refusal following an opposition.
For the examination of oppositions and appeals, TPI Trademarks Department has a separate division (oppositions and appeals division). Parties who are not satisfied with the decisions of this division can also appeal to the decisions before the Institute. "Re-examination and Evaluation Board" is the final decisive organ of the Institute; the decisions of the board are open to court actions in 2 months time limit.
What is the duration of the trademark protection?
Any registered trademark shall be protected for a period of 10 years starting from the application date. It is also possible to protect the trademark for a limitless time by renewing in every 10-year-period.
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