ABSTRACT
In this study, the problems that arise in practice regarding the secrecy patent in Turkish law are pointed out by taking into account the United States of America (“USA”) practice.
I. INTRODUCTION
Products created as a result of individuals’ mental activities are commonly referred to as intellectual property products; products that are based on known knowledge and form a solution in an unknown, technical field are considered industrial property products in a specific sense. Industrial property products include patents, utility models, trademarks, designs, integrated topographies, breeders’ rights, geographical indications2, etc. Among these, a patent refers to a new, industrially applicable and inventive product that is a solution or a process that is itself a solution. A patent is a legal right granted to the inventor as a result of a patent application. If the owner of an invention that can be used in a technical field is convinced that his/her invention is patentable, s/he will file a patent application and explain his/her invention in detail. The process of obtaining a patent consists of two separate stages: the patent application and the patent application process. It is necessary to pay attention to the claims and the specification, which should be included in the patent application. After the patent application is filed, the Turkish Patent and Trademark Office (“TürkPatent”) conducts patentability examination. Depending on the type of patent, the examination procedures may vary. If, during the formal examination, TürkPatent is of the opinion that the patent application will be important for national security, the process regarding the application will be stopped. This is the type of secrecy patent where the importance of the patent application in terms of national security is questioned. Due to the non-publication of the information concerning the patent application for which a secrecry decision has been made and the suspension of the proceedings concerning the application, it has become difficult for the patent holder to protect the absolute rights arising from the invention against the infringing acts of third parties.
Under the Industrial Property Law No. 6769, one of the issues regulated is the secrecy patent. Although the doctrine refers to the secrecy patent as a type of patent, the main feature of the secrecy patent is the difference in the patent registration procedure for national security purposes. The existence of special provisions regarding the secret patent in the legislation raises various problems, such as whether the general provisions can be applied in cases such as patent infringement or patent violation, and if so, how they will be applied. On the other hand, the evaluations in the doctrine regarding the secrecy patent in the Turkish patent law are not sufficient.
The study firstly explains the concept of patent and the process of obtaining a patent under the Turkish patent law, and then examines the provisions of the secrecy patent, which is one of the patent types regulated in the legislation. Finally, infringement of the rights of the inventors subject to the secrecy decision are discussed and the results of the study are summarised in the conclusion.
II. GENERAL OVERVIEW OF PATENT SUNDER TURKISH LAW
Individuals have the status of in rem rights in products, which are intangible goods created by their intellectual efforts. The Industrial Property Law No. 67691 (“Code No. 6769”) regulates industrial property rights such as patents, utility models, trademarks, designs and geographical indications2. Unlike copyright works, which have an intellectual property character, industrial property products are technical in nature. In other words, they are related to industry and technology3.
A. The Concept of Patent
The wording of a patent, known as ihtira beratı in Ottoman Turkish, was introduced into Turkish society in the 19th century. The first law on the protection of patentable inventions was the Ihtira Berat Law of 1879. The Ihtira Berat Law was replaced by the Decree Law4 No. 551 on the Protection of Patent Rights5. Eventually, the Decree Law on the Protection of Patent Rights was repealed and patent law in the field of industrial property is governed by the prevailing Code No. 6769. In this respect, the first source of reference for the concept and provisions of patents is the Code No. 6769.
The first paragraph of Article 82 of the Code No. 6769 regulates patentable inventions and specifies non-patentable inventions. Accordingly, it is accepted that patents may be granted for inventions in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application. According to the World Intellectual Property Office (“WIPO”), a patent is generally defined as an exclusive right6 granted for an invention consisting of a product or process that provides a new way of doing something or a new technical solution to a problem. Article 27 of the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) provides that patents may be granted for any invention relating to any product or process in any field of technology, provided that it is new, involves an inventive step and is susceptible of industrial application7.
In parallel with the legislation, there are doctrinal explanations of the concept of a patent. In any field of technology, it is accepted that any invention relating to a product or process which (i) is new, (ii) involves an inventive step and (iii) is susceptible of industrial application shall be considered as a patent8. In this respect, firstly it is necessary to determine whether an intellectual product is an invention or not. For a product to be an invention, it must be of a technical nature, and inventions outside the technical field are not protected by patent rights. For example, a model developed in the social sciences as a result of long efforts in the financial sector does not have a technical character9. The technical nature of an invention can be understood as the creation of an applicable, concrete and reproducible solution by using the forces of nature10. It can be considered that the main purpose of patent law is to protect the right of ownership of intellectual products that have economic value as a result of technological progress, as well as to cumulatively increase the contributions to industry.
B. Patent Right
Registration of the patent right has a constitutive effect on the right to the patent and an explanatory effect on the right to the invention11. Within the scope of the patent right, the inventor is provided with protection of the intellectual rights to the invention presented to society for industrial use12. In this respect, the patent application procedure and the scope of the finally registered patent are important for the inventor.
1. Patent Registration Process
a. Patent Application
It was stated that the invention candidate to be patented should meet the criteria of novelty, inventive step and industrial applicability. These criteria are defined in the guideline13 published by TürkPatent, where the patent application is filed, as follows “Novelty: It means that the invention did not previously exist anywhere in the world, i.e. it is not part of the current state of the art. Unlike patents, the utility model is not expected to exceed the state of the art in terms of novelty in relation to the invention’s subject matter.
Inventive Step: This means that the invention is of such a nature that it cannot be clearly deduced from the state of the art by a person skilled in the relevant technical field.
Industrial applicability: It means that the invention can be made, applied or used in any branch of industry, including agriculture.”
The patent application file consists of application form, description, claims, abstract and figures. In the description included in the patent application file, it is recommended that the technical field to which the invention relates, prior art - similar inventions, technologies or products - and the innovations, advantages, disadvantages eliminated or problems solved compared to the technology or products in the prior art should be included. In addition, if there are drawings, it is also recommended to explain the figures in these drawings and the elements indicated by reference marks in the figures14.
The claims, one of the elements of the patent application, express the part of the invention for which protection is demanded. The patent application process will begin after all information/ documents required in the patent application have been submitted to TürkPatent.
b. Patent Application Process
In order for a patent application to be subjected to formal examination before TürkPatent, the elements of the application must be completed or complete. It is possible for the applicant to complete the elements found to be missing during the formal examination within two (2) months. In fact, if the missing elements are not completed, the patent application will be removed from the process. For the patent application that has passed the formal examination, a search request must be filed within twelve (12) months if it was not requested during the filing process. Again, if the search request is not made within the time limit, or if the fee associated with the request is not paid, the patent application will be removed from the process15.
Before TürkPatent, the search report is considered as the first stage in deciding the fate of the patent application. In the above-mentioned report, the closest prior art documents within the technical scope of the subject matter of the invention are listed. After notification of the search report to the applicant, the applicant must request an examination of the patent application within three (3) months from the date of notification of the search report. In addition to the request, the applicant may submit counter-opinions on the search report and make amendments to the specification and claims.
The patent application will be published within eighteen (18) months from the date of filing. If the applicant has requested early publication, the patent application will be published in the Official Patent Bulletin of TurkPatent after the form of the patent appli cation has been examined, without waiting for eighteen (18) months. It is possible for third parties to submit comments on the said patent application after the publication of it in the Bulletin. In any case, the patentability of the patent application, if it is decided to proceed, will be finally decided during the examination phase.
At the examination stage, the documents contained in the search report are examined to determine whether the patent application meets the criteria for patentability. If the result of the examination is favourable, the applicant is notified of the decision to grant a patent, together with a detailed examination report. If, on the other hand, the result of the examination is unfavourable, the applicant will receive a communication setting out the reasons for the non-granting of the patent and the grounds on which it is based. In response to this notification, the applicant is expected to file a counter-opinion or make amendments that do not exceed the scope of the application, provided that the total number of amendments does not exceed three. If there is no reply to the notifications sent by TürkPatent within three (3) months or if no amendments are made within two (2) months, the application shall be deemed to be withdrawn.
If, as a result of the examination report, it is decided to grant a patent, this decision is notified to the applicant and the patent application is published in the Official Patent Bulletin. If no opposition to publication is received within the six (6) month official opposition period, the patent application is registered. If an objection is received within the official opposition period, an examination will be carried out by TürkPatent, taking into account the opinions of the patentee and the requests for amendments to the patent, if any. A period of three (3) months shall be granted to the applicant for submitting the opposition comments or amendments16.
c. Patent Types
Patents are divided into three types according to their subject matter (process and product), whether they are supplementary patents or not, and whether they are secret or not. Classifying patents according to their subject matter, in a product patent the invention consists of the product, which is the solution itself. In the case of a process patent, on the other hand, the solution consists of a series of successive processes and the elements to be used in these processes17.
Another type of patent, the supplementary patent, is governed by article 123 of the Code No. 6769 as follows: “The patent applicant may file a supplementary patent application to the original patent application for the protection of inventions which perfect or improve the invention which is the subject of the patent and which are in integrity with the subject matter of the original patent within the scope of the first paragraph of Article 91”18. Another type of patent is the secrecy patent. The evaluations concerning the secret patent are given under the next heading.
III. SECRECY PATENT
A. Regulations Under The Code No 6769
Article 124 of the Code No. 6769 regulates in detail the provisions concerning secrecy of patents. Accordingly, if TürkPatent considers that a patent application filed with TürkPatent according to the above procedures is important for national security, a copy of the application will be forwarded to the Ministry of National Defence (“the Ministry”) for its opinion and the applicant and its attorney, if any, will be notified. It is accepted that all types of applications relating to national security, whether or not they are related to the defence industry, may be considered under the secrecy patent19.
Whether the patent application qualifies as a secrecy patent in accordance with the provision of the above-mentioned article will be assessed by TürkPatent experts during the formal examination process and notified to the Ministry. Even if a search request is received without a final return from the Ministry regarding the nature of the patent application, the search process will not proceed. Within three (3) months from the notification sent to the Ministry about the patent application, the Ministry must communicate the secrecy decision. If the secrecy decision is not communicated by the Ministry within these three (3) months or if it is decided that the patent application does not need to be kept confidential for national security reasons, the legal process regarding the patent application will be initiated by TürkPatent.
At this point, it should be noted that it is unclear under which criteria the evaluation of the opinion of the TürkPatent regarding the need to keep the patent application secret in terms of national security will be made. Similarly, there is no clear regulation regarding the criteria for the actual evaluation to be carried out by the Ministry. There is an opinion that the issue may lead inventors to refrain from filing applications in practice20.
After the secrecy decision has been taken by the Ministry and notified to TürkPatent, the patent application will be registered as a secrecy patent by TürkPatent without any further action. The patent applicant is obliged not to disclose the invention covered by the secrecy patent application to unauthorised persons. In the doctrine, the ambiguity of the term “unauthorised persons” in the text of the said article has been criticised and it has been stated that the authorised persons may be the military and technical personnel of the Ministry and the competent officials of TürkPatent, as well as the inventor21.
The protection of an invention by patent is in the economic interest of the inventor. In fact, the patent right established by the Code No. 6769 essentially aimes protecting the economic interests of inventors. However, the decision to keep a patent application secret may harm the economic interests of the inventor. Therefore, according to the Code No. 6769, “the patent applicant may claim compensation from the State for the period during which the patent application is kept secret. If the parties cannot agree on the amount of compensation to be paid, the amount of compensation shall be determined by the court. The compensation shall be calculated taking into account the importance of the invention and the amount of potential income that the patent applicant would have received if he had been able to freely exploit the invention”. However, it is envisaged that the right to compensation will be lost if the patent application, which has the characteristics of a secrecy patent under the Code No. 6769, is disclosed through the fault of the applicant.
The right to compensation granted to the inventor on the basis of the secrecy decision is calculated on the basis of the possible income that the inventor could obtain by freely using his/her invention. However, although it is not provided for in the Code No. 6769, the doctrine argues that the inventor should be entitled to claim moral damages. This is because the inventor is likely to suffer from being deprived of the fame that he deserves, within the limits of the time that s/ he has devoted to his/ her invention and the mission that s/he has conceived for his/her invention22.
Pursuant to the fifth paragraph of article 124 of the Code No. 6769, the inventor whose patent application is included in the scope of a secrecy patent may apply for permission to use all or part of his invention. It should be noted that the said provision is criticised for its ambiguity in that the permission is subject to the approval of the Ministry according to (i) the nature of the invention and (ii) the conditions of the inventor, without any record or framework. In fact, it can be considered that the said ambiguity is the part that should be evaluated, especially in the context of patent law, in relation to the principle that the patent right within the scope of the property right regulated by article 35 of the Constitution can be restricted only in the public interest and within the scope of article 13 of the Constitution. In addition, although there is no provision in the Code No. 6769 regarding the procedures to be followed in order to lift the secrecy decision, it can be argued that there is a right to apply to the court for the lifting of the secrecy decision, which is a kind of administrative act within the framework of the constitutional right to apply to the court against all kinds of decisions, transactions and actions of the administration23.
It is stipulated that the applicant shall not pay any annual fee to TürkPatent during the period of confidentiality within the scope of the secrecy patent application. In fact, it is not reasonable for the inventor to be obliged to pay an annual fee when the inventor is entitled to compensation for the patent application during the secrecy period. However, under the provision in the Code No. 6769 that a declassified patent application shall be treated as a patent application from the date of declassification, it is stated that the annual fees should be paid retroactively24. Since the patent applicant has no direct influence over the decision to declassify, the Ministry’s decision is a direct administrative decision made again at its request and without being subject to any time limit under Code No. 6769 with regard to the patent application. Accordingly, even though there is currently no legal regulation regarding the lump sum payment of the annual fees to be paid retroactively, it can be argued that it is not in accordance with the principle of equity for the applicant, whose property rights are in a sense restricted due to the declassification of the invention by TürkPatent. Moreover, it can be considered that it is not in accordance with the principle of the rule of law to make the patent applicant liable for the payment of a substantial fee with the subsequent declassification of the patent application which has been decided to be secret for a long time25.
On the other hand, there is no explicit provision in the Code No. 6769 as to when the period of protection of the invention for which the secrecy decision has been lifted begins. If the provision in the Code No. 6769 that a declassified patent application shall be treated as a patent application from the date of declassification and the provision in the second paragraph of the same article that the proceedings on the application for which no secrecy confidentiality decision has been taken shall be evaluated together, it is seen that there is an invention for which the proceedings have not yet been initiated, in other words, the term of protection has not yet commenced; since the patent application has not been disclosed to third parties in accordance with the secrecy decision - since the novelty criterion has not been eliminated - the protection period has not started even if it has been filed earlier, the most reasonable solution to the problem is not to operate the patent protection period as long as the patent application is kept secret and, after the secrecy decision is terminated, the patent protection period should be operated from where it left off (by deducting the period until the secrecy decision regarding the patent application was made before TürkPatent)26.
In the Turkish patent law, there are not sufficient regulations regarding the nature and provisions of the secrecy patent application, and the evaluations regarding the secrecy patent in the doctrine have been limited to the titles of patent types. Patent is identified with openness in terms of etymology, and studies on the secret type of patent should be increased27. It is possible that the general provisions concerning the secret patent may be applied in practice in different ways. The applications of inventions made in Türkiye for the first time in Türkiye are subject to the provisions of article 124 of the Code No. 6769.
It is possible to file an application in Türkiye for an invention that has the characteristics of a secrecy patent applied for in another country. The provisions in this regard are determined in accordance with the “Agreement on the mutual protection of invention secrets related to defence and subject to patent applications”28. In fact, the mentioned agreement only refers to the registration in Türkiye of patent applications that are subject to a secrecy decision made in the contracting countries. The country in which the invention subject to the secrecy decision is realized submits the application to its embassy, the embassy of the foreign country submits the invention to the Ministry of Foreign Affairs and the Ministry of Foreign Affairs submits the invention to TürkPatent. In order to prepare the application and carry out the procedures before TürkPatent, one of the patent attorneys holding a NATO security certificate must be invited to TürkPatent and the invention must be submitted to TürkPatent. TürkPatent will not take any action after the application and will record the application as a secrecy patent. In this sense, it is worth to point out that the decision on the secrecy of inventions made in Türkiye before the TürkPatent is made by the Ministry of National Defence, whereas inventions subject to a secrecy decision made in NATO member states are registered directly in the secret patent register by the Ministry of Foreign Affairs, regardless of the Ministry’s decision on the secrecy.
Another issue concerns the filing of a patent application abroad which has been decided to be secret in Türkiye. According to article 124/9 of the Code No. 6769, the inventor may file an application in another country only within the scope of the right of permission granted under the Code No. 6769 and may not attempt to file a secrecy patent application in any country without the permission of the Ministry. However, if an application is filed abroad in violation of the provisions of the Code No. 6769, although no direct sanction is provided in the Code, it may be assessed within the scope of the Turkish Penal Code No. 523729 if the conditions are met.
B. Secrecy Patent Under USA Law
The laws of many countries generally contain provisions for decisions on the secrecy of patent applications relating to national defense. In particular, USA has detailed regulations and a rich case law on inventions important to national security, i.e. secret patents. The development, secrecy and protection of defense technologies are carried out within the framework of secret patent provisions30.
Firstly, US patent law provides for three types of secrecy patent order to be issued. The first of these is called as “Type I Secracy Order” and such secrecy patents may be filed for foreign patents in certain countries - those that have a mutual trust agreement with the USA. In the other “Type II Secracy Order” and “Type III Secracy Order”, the effect of the secrecy decision is more intense31. On the other hand, legal opinions on the use of secrecy patents by and/or for the state have also been issued in the context of court decisions in USA patent law. Although there is no explicit provision permitting the use of patented inventions by the state when deemed necessary, it is accepted that the use of patented inventions for the benefit of the state is subject to expropriation claims. Although it was initially thought that the above provision would not cover the secrecy patent as an invention that has not yet been patented, it has been accepted that the provisions of the expropriation compensation claim also apply to the secrecy patent, with the acceptance that technical information (know-how), which is a trade secret before the courts, although not patented, has the characteristics of private property32.
C. Secrecy Patent in Turkish Patent Practice
Under the Intellectual Property Law, the rights relating to inventions are not protected at the time of their creation, but at the time of filing the application with the competent institution. In this respect, the inventors will not be able to use the rights arising from the patent within the framework of Code No. 6769 (offering for sale, selling, importing, manufacturing, using, leasing or licensing the product obtained by the product or process covered by the patent to third parties) without applying for their inventions covered by the patent to TürkPatent. In order for the exclusive rights of the inventor to arise, the invention must have been duly made available to the public33. The exclusive rights of the inventor over the patent are of an absolute nature and entitle the inventor to request the prohibition of third parties by declaring that the acts constitute infringement in cases where the invention subject to the patent and/ or the product resulting from the invention, including the usurpation of the patent right, is offered for sale, sold, imported, produced, used, leased or licensed to third parties without the inventor’s consent. It is recognised that the main issue to be assessed in patent infringement relates to the claims of the disputed inventions34. In this respect, the patent applicants published by TürkPatent, whether they are registered or not, have the capacity of active hostility in the sense of patent infringement cases and the patent applicant has the right to use the rights arising from the patent against the infringer who has been informed about the application or its scope.
It is clear that the exclusive rights granted to the inventor are not valid for the inventions subject to a secrecy patent decision due to non-publication of the patent application based on its secret nature before TürkPatent. This is because the claims, description, etc. prepared by the inventor are not made available to the public either by TürkPatent or by the applicant/ inventor within the scope of the patent application kept secret for reasons of national security. Thus, it is accepted that owners of secrecy patents cannot file patent infringement lawsuits due to their lack of hostile capacity. However, article 141/3 of the Code No. 6769, which is an exception to this rule, provides that “From the date of publication of the patent application or utility model application under Article 97, the owner of the patent application or utility model application shall be entitled to sue for infringement of the invention. If the infringer has been informed of the application or its scope, the publication of the application shall not be taken into account. If the court decides that the infringer acted in bad faith, the existence of the infringement before publication shall be accepted”35. In this case, even if the claims are not published, it is possible for the owner of secrecy patent to claim before the courts for detection, prohibition and refusal of infringement against the malicious third party who is aware of the invention in case of infringement of the patent right.
However, articles 99/3 and 99/7 of the Code No. 6769 is as follows: “If no opposition is filed or if the opposition is deemed not to have been filed, the decision to grant the patent shall become final and the final decision shall be published in the Bulletin. (...) The final decision on the opposition shall be published in the Bulletin. If it is decided to maintain the patent in amended form in accordance with paragraphs 5 and 6, the amended form of the patent shall be published in the Bulletin”. Article 141/4 of the Code No. 6769, on the other hand, provides that prior to the publication provided for in article 99, the courts shall not be competent to decide on the validity of the claims raised in respect of infringement of patent rights. Therefore, it can be stated that the court should make the publication of the relevant patent application in the Official Patent Bulletin after the secrecy decision is lifted by the Ministry and the secret patent is deleted from the registry, as a matter of waiting, without deciding on the claims of the inventor claiming infringement with respect to the patent application.
There is no clear provision in the legislation regarding the application of the issue of the waiting period for the courts to decide on patent infringement claims within the scope of the secrecy patent. It can be said that the indefinite period of time due to the termination of the examination proceedings concerning the invention for which a decision on a secrecy patent has been made, and the lack of a definite date for the end of the decision on secrecy, creates a reservation before the courts on the issue of the waiting period. As a matter of fact, the Court of First Instance of the Judicial Jurisdiction36, without making a reservation issue regarding the allegations that the patent application subject to the secrecy patent made by the defendant constitutes an infringement of the plaintiff’s patent application, stated that “when the entire scope of the file, the evidence, the expert report and the Turkish patent records are evaluated together; the patent application dated 07/08/2018 and numbered . ....., of which the plaintiff is the applicant and inventor, has not yet been finalised and there is no finalised set of claims, and the patent application filed by the defendant and numbered ...... is still at the filing stage and it is not clear whether it will be registered or not. It is therefore not possible to compare the patent applications since there is no finalised patent registration”, and a decision was taken to dismiss the case.
In the doctrine, the unfair competition provisions regulated in article 56 of the Turkish Commercial Code No. 6102 and its continuation are shown as another regulation that can be applied in case of non-publication of the claims of the secret patent, other than relying on the bad faith of the third party who committed the infringement - being aware of the invention37. Although the inventor cannot be a party to the infringement dispute due to the non-publication of the patent right, it is accepted that the inventor can file a lawsuit based on the unfair competition provisions. It should be noted that the interests of the parties in an unfair competition claim are not the same as those in a patent infringement claim. Although the economic interests in the mentioned disputes are the same, the ways to determine the infringement are different in law and practice. For instance, patent infringement does not necessarily require that the product or process covered by the patent be used and that such use cause material damage38. In sum, it can be said that there is a legal gap in the Code No. 6769 in disputes regarding the infringement of a secrecy patent. In cases where the subject matter of the dispute before the courts is related to the secrecy patent, it is seen that no evaluation on the merits is made on the grounds that the decision to grant a patent has not been published, and in cases where it is possible to claim infringement without publication pursuant to article 141/3 of the Code No. 6769, there is no regulation on the issue of making a matter of waiting.
IV. CONLUSION
The patent right is a legal basis for the protec tion of intellectual property as well as for the protection of economic interests of persons who make a new invention in the technical field. In order to obtain a patent, the inventor must first apply for a patent. The patent application contains elements that the inventor must prepare for carefully. In particular, claims and description show that the invention is new, applicable to industry and involves an inventive step. The secrecy patent is deter mined during the first examination of the patent application before TürkPatent according to whether it is important for national security within the framework of the opinion of the Ministry. If the Ministry decides to keep the invention covered by the patent application secret, the patent application procedure is carried out confidentially without publishing the specification and claims contrary to the rule. The lack of objective criteria in the Code No. 6769 for this secrecy decision and the lack of sufficient studies in the doctrine are among he issues criticised.
In addition, the provisions of the law on in fringement of a secrecy patent appear to be inadequate. According to the practice of the Code No. 6769, the claims of inventors against third parties for infringement of patent rights (with the exception of Article 141/3 of the Code No. 6769) can only be heard after the publi cation of the relevant application by TürkPatent. In addition, pursuant to article 141/4 of the Code No. 6769, the courts cannot give a judgement on the disputed patent application without the publication of it. However, according to the Ministry, it is not appropriate for the owners of secret patents to have to wait for the lifting of a secrecy order of indefinite duration in infringement proceedings concerning patents whose claims have not been published.
It is observed that there is no constitutional review of the secrecy patent. The patent right is one of the industrial property rights and can only be restricted to the extent required by the public interest in accordance with article 35 of the Constitution. However, it cannot be considered reasonable to restrict the use of a patent, which is usually made by the inventor for economic gain, within the framework of an undefined concept such as national security.
In practice, it can be said that there are a few more issues that may be problematic about the secret patent. Firstly, there is no explicit provision on whether the regulation enabling the transfer of patent application is valid for secrecy patents. Although the proceedings of the patent applications, which are decided to be confidential, are suspended before TürkPatent, it cannot be said that the applicant’s capacity to dispose is restricted. Even if the inventor does not share the content of the patent application with unauthorised persons, it is possible that the patent application, which is kept secret solely for national security reasons, may be considered interesting for com panies operating in technical fields such as the defence industry. In this respect, it would be beneficial to include an explicit provision in the legislation regarding the transferability of the confidential patent application.
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FOOTNOTE
1 Dated 13.12.1951, Official Gazette No. 7981 (OG).
2 Şafak N. Erel, Türk Fikir ve Sanat Hukuku, Yetkin Yayınları, Ankara, 2009, p. 25-27.
3 Nuşin Ayiter, Hukukta Fikir ve Sanat Ürünleri, S Yayınları, Ankara, 1981, p. 11.
4 Dated 27.06.1995, OG No. 22326.
5 Tolga Akay, Osmanlı Devleti’nde Patent Sisteminin Gelişimi, Legal Fikri ve Sınai Haklar Dergisi, Vol. 11, Is. 44, 2015, p. 25.
6 https://www.wipo.int/patents/en/ (Access date: 21.01.2024).
7 Agreement On Trade-Related Aspects Of Intellectual Property Rights (TRIPS Agreement 1994).
8 Uğur Çolak, Türk Patent Hukuku, 1. Edition, Ankara 2022, p. 224.
9 Rauf Karasu/ Cahit Suluk/ Temel Nal, Fikri Mülkiyet Hukuku, 7. Edition, Ankara 2023, p. 258.
10 Onur Sarı, “Türkpatent Kurumu Nezdinde Patent Edinme Sürecinin Hukuki Değerlendirmesi”, Türkiye Barolar Birliği Dergisi, Is. 144, 2019, p. 301.
11 Mevci Ergün, Yan Sanayide Fikri Mülkiyet Hukuku Uygulama Kılavuzu, 1.Edition, Ankara 2023. p. 645.
12 Sarı, p. 300.
13 For the subjects that cannot be granted a patent because they are not considered as inventions and for the inventions that cannot be protected by patent although they are inventions, kindly see: Türk Patent ve Marka Kurumu, Patent Başvuru Kılavuzu, 2023, https://www.turkpatent.gov.tr/ patent-ve-faydali-model (Access date: 21.01.2024).
14 Türk Patent ve Marka Kurumu, Patent Başvuru Kılavuzu, 2023, https:// www.turkpatent.gov.tr/patent-ve-faydali-model (Access date: 21.01.2024).
15 Türk Patent ve Marka Kurumu, Patent Başvuru Kılavuzu, 2023.
16 Türk Patent ve Marka Kurumu, Patent Başvuru Kılavuzu, 2023.
17 Ünal Tekinalp, Fikri Mülkiyet Hukuku, Vedat Kitapçılık, 5. Baskı, İstanbul, 2012, p. 596.
18 Sarı, p. 305.
19 Zehra Enligün, “Ulusal Başvuru ve Yurtdışı Başvurusu Olarak Gizli Patent ve Uygulama Güçlükleri”, Fikri Gündem, Is. 23, 2022, p. 36.
20 Enligün, p. 35.
21 Çolak, p. 606.
22 Çolak, p. 607.
23 Mehmet Hamza Arslan, Patent Hakkına İlişkin İstisnalar ve Sınırlamalar, On İki Levha Yayıncılık, 1. Baskı, İstanbul, 2023, p. 36.
24 Çolak, p. 607.
25 Türk Patent ve Marka Kurumu, İnteraktif Bilgilendirme Servisi: (312) 303 1 303 (Access date: 19.02.2024).
26 Çolak, p. 608.
27 Patent means “open, unsealed” in Latin and is used in England in the sense of “open, unsealed licence”. In a way, this respect makes the ownership of the invention explicit. Gökçe Üstünsoy, 2017-2021 Yılları Arasında Türkiye’de Patent ve Faydalı Model Başvurularının Mevcut Durum Analizleri, Ankara: Başkent Üniversitesi, Sosyal Bilimler Enstitüsü, Master Thesis, 2022), p. 5.
28 From Doruk Utku, “ABD Patent Hukukunda Savunma Teknolojilerine İlişkin Gizlilik Kararları”, İstanbul Medipol Üniversitesi Hukuk Fakültesi Dergisi Vol. 3 Is. 1, 2016, p. 105, signed on 21.09.1960 in Paris, between contracting parties of NATO “NATO Agreement For The Mutual Safeguarding Of Secrecy Of Inventions Relating To Defence And For Which Applications For Patents Have Been Made”. (OG dated 19.09.1961, No. 10910). For the English version of the Agreement: https:// treaties.un.org/doc/Publication/UNTS/ Volume%20394/volume-394-I-5664- English.pdf (Access date: 19.02.2024).
29 Dated 12.10.2004 OG No. 2561.1
30 Utku, p. 100.
31 Utku, p. 111.
32 Utku, p. 123.
33 Tahir Saraç, Patentten Doğan Hakka Tecavüz ve Hakkın Korunması, Seçkin, 1. Edition, Ankara 2003, p. 150.
34 İlhami Güneş, Patent ve Faydalı Model Hukuku, Seçkin, 4. Edition, Ankara 2021, p. 307.
35 Pelin Karaaslan, Dolaylı Patent İhlali, Seçkin, 1. Edition, Ankara, 2021, p. 245.
36 Bakırköy 1st Civil Court of Intellectual and Industrial Property Rights, E. 2021/228 K. 2022/64, T. 15.3.2022.
37 Ahmet Tamer, Patent ve Faydalı Model Hakkına Aykırılığın Sonuçları, Bilge, 1. Edition, Ankara 2013, p. 114.
38 Murat Oruç, Haksız Rekabette Maddi Tazminat Davası, İstanbul: İstanbul Üniversitesi, Sosyal Bilimler Enstitüsü, Master Thesis, 2008), p. 20.
