Unused Patents in Turkey: Compulsory Licensing for Foreign Manufacturers

Non-use of a Turkish patent does not automatically cancel the patent or give a competitor permission to manufacture. Articles 129 and 130 of Industrial Property Code No. 6769 provide a judicial compulsory-licensing route under defined conditions. The relevant waiting period ends on the later of three years after publication of grant and four years after the application date. The applicant must also establish the relevant non-use or insufficient-use position and satisfy the procedural requirements.

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For an overseas manufacturer planning Turkish production, or a patent owner whose technology has not reached the market, this is an evidence-led licensing question. A compulsory licence is not an assignment, an invalidity judgment or an unrestricted import authorisation. This guide explains the timing, negotiation record, market evidence and limits that matter to a commercial decision under the non-use route.

Article 130 requires a factual assessment of use

Article 130(1) of Code No. 6769 requires the proprietor or the person authorised by it to use the patented invention. In assessing use, market conditions and circumstances outside the owner’s control and will must be considered. The rule therefore cannot be reduced to a statement that a patent without a visible factory is automatically available to competitors.

Identify the invention and the actual commercial activity. A patent can concern a product, a process or a technically defined combination that is not apparent from a company website. Use by an authorised person is relevant under the statute, so the investigation should not stop at the proprietor’s own sales. Licence arrangements and the supply chain can be important to understanding what is happening.

Do not assume that a foreign registration or an overseas product catalogue resolves the Turkish statutory issue. Equally, do not invent a universal rule that every form of supply counts, or that only one particular manufacturing model can count. The claimed use, the applicable protection and the national market evidence must be analysed in the actual case.

The waiting period uses the later of two dates

Article 130(2) permits the relevant request after the later expiry of three years from publication of the grant decision in the Bulletin or four years from the patent application date. Both dates must be recorded. Calculating only three years from the certificate date, or only four years from an assumed priority date, does not reproduce the statutory test.

Obtain the application record and the actual grant publication. Distinguish the filing date, priority claim, grant decision and Bulletin publication. An internal spreadsheet should name the event behind each date so that a later reviewer can reproduce the calculation. A patent-family database is a useful discovery aid, but the relevant official record should support the procedural decision.

The end of the waiting period does not itself create a licence. It opens the statutory route where the other requirements are met. Until an agreement or effective judicial permission provides the necessary authority, the applicant must not describe its proposed production as already licensed merely because the calendar threshold has passed.

What must be shown at the time of the request?

Article 130(2) identifies non-commencement of use, lack of serious and actual efforts toward use, or use insufficient to meet national market needs as the relevant grounds at the time the compulsory licence is requested. Frame the case around the ground actually supported by the evidence. A general accusation that the owner is commercially inactive does not explain which statutory condition is alleged.

Separate a project announcement from evidence of implementation. Agreements, investment records, technical work, regulatory steps and supply arrangements can bear on whether serious and actual efforts exist. Their significance depends on the invention and market. The statute does not provide a universal checklist making a press release sufficient or requiring every owner to hold the same documents.

For insufficient supply, identify the relevant market need and the basis for the assessment. Customer requests, documented shortages, product specifications and reliable market data answer different questions. Do not equate a prospective licensee’s preferred sales target with the national need identified by the statute. Explain the relationship between the patented invention and the demand that remains unmet.

The owner’s response should address the same factual issues. Market constraints and circumstances outside its control are expressly relevant under paragraph 1. Preserve contemporaneous evidence of those circumstances rather than relying only on a later explanation prepared for litigation. A justified obstacle and a commercial preference not to exploit the right should not be treated as automatically identical.

A long interruption of use is also addressed

The final sentence of Article 130(2) applies the rule where use has been interrupted continuously for more than three years without a justified reason. The wording requires both the duration and absence of justification to be considered. It should not be paraphrased as covering every short production stoppage or three separate years of intermittent difficulties.

Build a chronology of the actual interruption. Last production, final delivery, suspension of an authorised licensee’s activity and a later restart can be different events. The relevant evidence must connect to use of the patented invention, not merely to whether the corporate entity remained registered or continued unrelated business.

For an acquisition, investigate the historical position before promising that the patent will remain an unchallenged exclusive asset. A buyer can acquire a registered right while inheriting a factual record of prolonged non-use. The purchase documents should identify known requests and disputes without suggesting that a transfer of ownership automatically resets the statutory history.

Prior negotiations are part of the non-use request

Article 129(2) requires evidence that the applicant sought a contractual licence on reasonable commercial terms but could not obtain it within a reasonable period, subject to the separate statutory exceptions for other specified routes. For the non-use case discussed here, prepare the negotiation record rather than assuming that a single unexplained demand establishes the requirement.

A meaningful proposal identifies the patent, the intended use, the proposed licensee and the principal commercial terms. Retain the request, delivery evidence, responses and revisions. Explain why the terms and elapsed period are said to be reasonable in the circumstances. This is not a statutory fixed waiting period of a particular number of days; inventing one would misstate the provision.

Negotiation should also clarify whether a voluntary licence can solve the problem more directly. Our patent licensing and technical-information guide explains the separate contractual framework. The compulsory route should not be presented as a way to obtain every commercial concession that the parties failed to agree voluntarily.

The court process and the content of the decision

Article 129(2) directs non-use compulsory-licence requests to the court and provides for the request and supporting documents to be sent to the patent owner. The owner has one month from notification to submit its views with evidence. The notification date therefore needs to be distinguished from the date the owner first hears an informal allegation.

Article 129(3) contains the subsequent statutory decision procedure. Its periods should not be converted into a promise that every real-world dispute, expert examination or appeal will finish within one month. The article’s procedural instructions and an estimated overall case duration are different propositions; this guide gives no guaranteed litigation timetable.

If a licence is granted, Article 129(4) requires the decision to state its scope, fee, duration, security, start of use and measures ensuring serious and effective exploitation. A business plan should be matched to those terms. The fact that an application requested broad permission does not mean the court granted it in that form.

Article 129(5) addresses a possible postponement of use pending finality where the owner’s evidence supporting suspension is considered sufficient. An appeal and an actual suspension or postponement order must be distinguished. Before production starts, obtain and analyse the operative decision rather than relying on a summary saying the applicant won.

A compulsory licence has important commercial limits

Article 133 provides that compulsory licences are non-exclusive, apart from the specific public-interest exception. The non-use route is therefore not a means of obtaining exclusive ownership of the Turkish market. The court considers the patent’s economic value when determining the fee, and the licence is granted subject to conditions concerning duration, remuneration and field of use.

Article 129(9), subject to the separate pharmaceutical-export route, directs compulsory licensing primarily toward supply of the domestic market. A foreign manufacturer should not assume that the decision supplies a worldwide manufacturing or export platform. The territorial and commercial permission must be read from the actual legal basis and order.

Article 133(2) does not give the compulsory licensee a right to sublicense or import the patented subject matter. It contains a specific, temporary, needs-limited import exception where public-interest licensing expressly authorises importation. That exception should not be imported into an ordinary non-use application by implication. This concerns the entitlement conferred by the licence, not a blanket conclusion about every unprotected good.

Under Article 135, transfer is valid only with the enterprise or the part in which the licence is exploited. A compulsory licence should not be marketed as a free-standing transferable asset. Corporate restructuring, a factory sale and a proposed change of operating entity therefore require review before the licence is assigned or relied upon by a different person.

Compliance continues after the licence is granted

Article 136 allows the owner or licensee to seek changes to the fee or terms on the basis of later events justifying modification. It also permits cancellation where the licensee seriously breaches or persistently fails to perform its obligations, without prejudice to the owner’s compensation rights. Keep records of production, payments and compliance with the particular order.

Where the circumstances justifying the licence end and are unlikely to recur, Article 136(3) provides for cancellation on request. The licence should not be described as necessarily lasting until the patent’s natural expiry regardless of subsequent events. Its legal basis and the court’s terms remain relevant throughout the operation.

Article 137 applies the contractual-licence provisions in Articles 125 and 126 where they do not conflict with the compulsory-licence provisions. Technical-information and confidentiality issues therefore need attention, but the contractual defaults cannot be used to override the special restrictions. Distinguish information needed to implement the authorised invention from unrelated research and business secrets.

Non-use licensing is not a substitute for other remedies

A patentability challenge belongs to the invalidity framework under Article 138. A dispute about whether a planned product falls within the claims raises the non-infringement questions explained in the patent-warning guide. A missed maintenance fee requires the separate annual-fee and restoration analysis. Choosing the correct route prevents a commercial concern from being forced into the wrong legal claim.

The useful final file identifies the patent, the two statutory date calculations, the actual-use evidence, the negotiation record and the proposed operational scope. It should also state what remains unproved. A compulsory-licensing application is a request for defined judicial permission, not proof that the patent is worthless or that manufacture can begin without further authority.

Official sources

Primary provisions: Industrial Property Code No. 6769, Articles 129–130 and 133–137. Official legislation links are available in the TÜRKPATENT legislation directory. This English explanation is not an official translation, a licence grant or a promise of a particular court timetable.

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