A Later Patent Is Not Permission to Manufacture: Dependent Patents in Turkey

Owning a later patent does not automatically give a company permission to use technology protected by an earlier patent in Turkey. Article 131 of Industrial Property Code No. 6769 addresses dependent patents: where the later invention cannot be used without infringing the earlier right, the later owner needs permission or an available compulsory-licensing solution. Registration of an improvement and freedom to operate are therefore different questions.

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This guide is for foreign technology companies, industrial investors and Turkish manufacturers whose improved product relies on an earlier protected invention. It explains the technical dependency test, the significant economic benefit and important technical advance required for the statutory licence, the earlier owner’s reciprocal request and the limits on transfer. It does not treat a patent certificate as a general authorisation to manufacture.

Start with two separate claim analyses

Article 131(1) of Code No. 6769 defines the relevant dependency by asking whether the later patented invention can be used without infringing the rights conferred by the earlier patent. The analysis must identify the actual claims and the intended technical activity. Similar titles, common inventors or products in the same industry do not by themselves prove dependency.

First describe the later invention and how the business intends to use it. Then compare that implementation with the earlier patent’s claims. A later patent can protect an improvement while the commercial implementation still uses a protected underlying combination. Conversely, a commercial relationship between the technologies does not necessarily establish that the earlier claims are infringed.

Article 89 supplies the claim-interpretation framework, including the description, drawings and equivalent elements. The technical report should therefore explain the relevant claim features rather than rely on visual difference or marketing terminology. Keep the operative claim versions and any relevant amendments with the comparison so that the analysis does not silently mix an original application with a later limited patent.

A later certificate is not a defence to the earlier right

Article 155 expressly prevents reliance on a later patent, trademark or design as a defence in the specified infringement action by an earlier-priority or earlier-filing right holder. The existence of a granted improvement patent should therefore not be presented to distributors as proof that all necessary permissions have been obtained.

This distinction is important in investment due diligence. A company’s portfolio may demonstrate technical development without establishing freedom to use every component of its intended product. Review the earlier rights identified by the search and the permissions actually held. The value of the improvement patent and the cost of obtaining access to an earlier technology are separate commercial questions.

A foreign grant also requires territorial analysis. Identify the Turkish rights and the legal position supporting the proposed application or defence. A certificate from another country does not, by itself, establish the scope of Turkish protection or the applicant’s standing under the Turkish statutory route. Map the family members and owners rather than treating the family as one universal licence.

Article 131(2) requires more than any technical improvement

The later patent owner can seek a compulsory licence where its invention represents an important technical advance of considerable economic significance compared with the earlier invention. Both the technical and economic elements should be addressed. It is not enough to say that a new product is more attractive to customers or that the later patent was granted after examination.

The technical analysis should identify the advance and explain how it relates to the earlier invention. Performance, resource use, reliability or another relevant characteristic can be examined where the evidence supports it. Do not present a promotional claim as a measured technical result. Preserve test conditions, the comparison baseline and the limits of the conclusions drawn.

The economic evidence should connect to the asserted advance. Forecasts, cost records and market information serve different purposes and should be labelled accordingly. A forecast is not an established revenue figure. The application needs a reasoned explanation of economic significance, not an invented statutory percentage or a promise that any reduction in cost meets the legal threshold.

Article 131 does not supply a universal financial formula for this assessment. A report should therefore distinguish the statutory test from the expert’s methodology and the company’s commercial assumptions. That separation makes the evidence assessable and avoids disguising a business preference as a legal conclusion already reached by the court.

The applicant’s legal position must match the remedy

The provision identifies the owner of the later patent as the person entitled to request the dependent-patent licence. A prospective distributor, financier or ordinary licensee should not assume that its commercial interest automatically places it in the same statutory position. Establish the ownership record and any transfer relevant to the proposed claimant.

Where the later patent is co-owned, review the relationship between the owners and the authority for the litigation and proposed exploitation. The co-owned patent guide explains the separate rules for use, licensing and court action. A shareholding in the company owning the patent must not be confused with a direct share in the patent itself.

Also identify the owner of the earlier patent and any relevant recorded rights. The licence request must concern the correct asset and counterpart. A warning sent by a commercial agent does not replace the register evidence identifying the right that the court is being asked to license.

Attempt a reasonable contractual licence before the court route

Article 129(2) requires evidence of unsuccessful efforts to obtain a contractual licence on reasonable commercial terms within a reasonable period for the dependent-patent route. Preserve the actual proposal and responses. A demand that the earlier owner surrender all rights for a nominal amount is not automatically evidence of a reasonable licensing attempt.

Define the proposed permission precisely: the patents, intended acts, territory, field of use and principal financial terms. Address the intended operating entity and whether access to technical information is needed. The patent licence and know-how guide explains contractual defaults that should not be left to assumption.

The statute uses a reasonable period, not a single fixed number of days for every negotiation. The chronology should show when meaningful terms were communicated, what information was requested and why the attempt failed. An initial expression of interest and a developed licence proposal are different events and should be recorded as such.

Negotiations can also reveal a possible design-around or an agreed cross-licence. Neither should be assumed to work without technical and contractual analysis. A commercial willingness to discuss alternatives does not establish that the later product is outside the earlier claims or that an oral conversation completed a legally effective licence.

The earlier owner can request reciprocal permission

If the later patent owner is granted the compulsory licence, Article 131(2) permits the earlier patent owner to request a compulsory licence to use the later patented invention. This is a reciprocal statutory request, not an automatic assignment of the improvement or an automatic conclusion that both parties can do anything they choose.

Consider that consequence before presenting the application as a one-way commercial advantage. The improvement owner may obtain access to the earlier technology while exposing its own patented advance to a properly framed reciprocal request. The business valuation and negotiation strategy should address that possibility openly.

The proposed scope and remuneration remain important. The general compulsory-licence framework governs the terms to be determined. Do not use the phrase cross-licence as though it necessarily means free use, identical territories or unrestricted sublicensing. The actual agreement or court decisions must establish what each party is permitted to do.

Court permission has defined operational limits

Article 129 directs the dependent-patent request to court and regulates notification of the owner, the submission of evidence and the decision. Under paragraph 4, the licence decision specifies scope, fee, duration, security, commencement of use and measures for serious and effective exploitation. A production plan should be checked against the order actually granted, not the permission originally requested.

Article 133 makes the ordinary compulsory licence non-exclusive and requires consideration of the patent’s economic value in setting remuneration. It also restricts sublicensing and the import entitlement conferred by the licence, subject to its separate express public-interest exception. A dependent-patent decision should not be advertised as an unrestricted worldwide supply-chain authorisation.

Article 129(9) generally directs compulsory licensing toward domestic-market supply, subject to the specified pharmaceutical-export route. The fact that the applicant is an overseas group does not turn its Turkish permission into a global licence. Each proposed manufacturing, import or export operation must be assessed against the relevant rights and the decision’s terms.

An appeal is not the same as an order postponing use. Article 129(5) addresses postponement pending finality where the owner’s supporting evidence is found sufficient. Obtain the operative procedural position before launch and distinguish requested relief, granted relief and restrictions still in force.

Transfer and changes to the underlying patents

Article 135 provides a specific transfer rule for a compulsory licence granted because of patent dependency: it is transferred together with the dependent patent. The licence is not a free-standing permission to be sold to an unrelated manufacturer while the later patent remains elsewhere. A corporate transaction should identify both assets and the conditions governing their movement.

Article 131(3) states that invalidity or termination of either dependent patent causes the compulsory-licence decision to cease. The consequences differ commercially depending on which right ends. If the later patent ends while the earlier patent remains protected, the business must not assume that the former compulsory permission continues unchanged.

Monitor the status of both rights, including maintenance events and final invalidity outcomes. The annual-fee guide and patent invalidity guide explain distinct routes by which the legal position can change. A pending allegation of invalidity should not be reported as though a final cancellation has already occurred.

Article 136 separately permits modification or cancellation of compulsory-licence terms under its conditions. Maintain evidence of compliance, payments and use. A licence obtained through litigation is not exempt from continuing obligations or subsequent review merely because the original dispute was difficult.

Keep dependency separate from non-use and non-infringement

The non-use route in Article 130 depends on different conditions and waiting periods. Those periods should not be copied into Article 131 without a legal basis. Our non-use compulsory-licensing guide addresses that distinct problem. A technically dependent invention and an unused patent are not interchangeable concepts.

Where the actual product does not infringe the earlier claims, the appropriate analysis may concern non-infringement rather than a licence acknowledging a need for permission. Where the earlier patent is invalid, that requires its own grounds and evidence. The final decision file should state the technical comparison, the statutory route selected and the commercial assumptions that remain conditional, rather than presenting patent ownership as a complete launch clearance.

Official sources

Primary provisions: Industrial Property Code No. 6769, Articles 89, 129, 131, 133, 135–137 and 155. Consult the TÜRKPATENT legislation directory for official legislation. This English explanation is not an official translation or technical clearance of a specific product.

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