Prior Use of an Invention in Turkey: Patent Defence for Existing Manufacturers

A later patent does not necessarily stop a business that was already using the invention in good faith in Turkey at the relevant application date. Article 87 of Industrial Property Code No. 6769 protects qualifying earlier use and serious, actual preparations for use. The protection is limited: activity must remain within the business’s reasonable needs, the right cannot be expanded through licensing, and it can be transferred only together with the enterprise.

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For an overseas investor acquiring a Turkish factory, or a manufacturer facing a patent warning after years of local production, the essential question is not simply who developed the technology first. The file must establish the qualifying person, the Turkish activity, its timing, good faith and the technical and commercial limits of continued use. This guide explains those requirements and distinguishes prior-use protection from patent ownership, invalidity and an ordinary licence.

The rule in Article 87 is tied to actual Turkish activity

Article 87(1) of Code No. 6769 addresses persons who, on or before the application date, were using the invention in good faith within the country or had taken serious and actual measures for its use. Against those persons, the applicant or patent owner cannot prevent continuation of use in the same way or commencement of use consistent with the measures already taken.

The territorial element is decisive for an international group. Earlier use at a factory abroad does not, by itself, establish the required use in Turkey. A foreign research report can help explain technical development, but the Article 87 file still needs evidence connecting the qualifying activity or preparations to Turkey. Do not substitute worldwide brand history for the statutory territorial condition.

The person relying on the right must also be identified. A foreign parent, Turkish subsidiary, local distributor and independent subcontractor are separate legal persons with potentially different activities. Evidence that one company ordered equipment does not automatically establish that another company qualifies as the earlier user. Explain who operated the business, incurred the relevant commitments and carried out the acts relied upon.

Use the legal application chronology, not the warning date

Article 87 expresses its test by reference to the application date. The date a warning arrived, the date the patent certificate was printed and the date a manager first learned of the patent are not substitutes. Obtain the actual application record and match the alleged prior use to the legally relevant chronology.

International patent files often contain several dates: an earlier foreign application, a claimed priority, subsequent filings, publications and grant. Keep them separately identified. Articles 93 and 94 regulate priority, and Article 93(7) specifies its effects for the provisions it lists. A professional assessment must address the relevant filing route and priority record instead of casually selecting the latest visible date in a database or treating every date as interchangeable.

The evidence should show when a particular technical configuration was used, not merely when the company was incorporated. A twenty-year-old business can have adopted the disputed invention only recently. Conversely, preparatory measures can precede commercial sales. The chronology must be built around the technology and the relevant activity, not general statements about how long the enterprise has existed.

Serious and actual preparations are more than a business idea

Article 87 does not require the business to have completed its first sale if it had already taken serious and actual measures to use the invention. However, the statutory wording requires more than an undated intention to enter the market. The file should identify the measures and explain how they relate to the specific invention.

Equipment orders, production-line plans, committed manufacturing arrangements, tooling records and dated installation work can be relevant evidence. Their significance depends on what they actually establish. An ordinary machine used for many unrelated products may say little about preparation to use the particular invention unless additional records explain its intended configuration and function.

Preserve both the document and the underlying event. An invoice date, delivery date and commissioning date can prove different things. Where a purchase order was cancelled or a project materially changed, include that history rather than presenting the original plan as completed preparation. The legal assessment needs the genuine state of the project at the relevant time.

These examples are practical evidence categories, not a checklist imposed word for word by Article 87. No single commercial document automatically guarantees the defence. A convincing file links multiple records to an identifiable technical project, the person conducting it and the Turkish business in which the use was planned.

Good faith must be examined alongside the technical history

Good faith is an express element of Article 87. An earlier date alone does not answer it. Record how the business obtained the technical information, which employees or suppliers contributed and what confidentiality or ownership arrangements existed. A statement that the invention was already known internally should be supported by the actual development and acquisition history.

Do not attempt to strengthen the file by backdating drawings, changing metadata or reconstructing records as though they were contemporaneous originals. Later explanatory reports can be useful, but they should be identified as later explanations and supported by preserved source material. Their evidential role differs from an instruction issued or a production record created before the application.

For an acquisition, ask the seller to identify disputes, warnings and allegations concerning the source of the technology. A representation that the company has always acted lawfully is not a substitute for technical and contractual due diligence. The buyer needs enough information to assess the claimed protection without publicly disclosing the manufacturing secrets it is trying to preserve.

The continued use must remain within the enterprise’s reasonable needs

Article 87 limits continued use, or use consistent with earlier preparations, to the extent required by the reasonable needs of the enterprise. It does not give the prior user an unrestricted right to exploit the invention across every business opportunity. Equally, the text does not state a universal numerical production ceiling that can be inserted into every case without examining the enterprise.

Document the business that existed, the products supplied, the capacity used or genuinely prepared and the relationship between that activity and the proposed continuation. This evidence helps define the claimed protection. It also prevents an internal decision-maker from treating a narrowly supported defence for one production activity as permission for unrelated product lines.

Technical changes need their own comparison. Article 87 protects continuation in the same way or use consistent with the measures taken. A later redesign, new process stage or materially different product should therefore be analysed rather than assumed to fall within the earlier-use position. A change in a machine’s commercial name is not, by itself, the legal test; the underlying technical activity is what must be explained.

Prepare an operational boundary document for the business team: the protected activity asserted, the evidence supporting it and the changes that require reassessment. This is a risk-management recommendation, not a statutory permit issued by the court or Office. It should accurately state the limits of the analysis and avoid representing a contested defence as a final judicial clearance.

No expansion by licensing; transfer only with the enterprise

The final sentence of Article 87(1) prevents expansion of the prior-use right through licensing and permits transfer only together with the enterprise. This is particularly important when an overseas group wants to move production between affiliates or authorise an independent manufacturer. A prior-use position is not a freely tradable patent licence that can simply be copied into a group-wide technology agreement.

Before an asset transfer, identify the enterprise and the technical activity to which the asserted right belongs. Describe the equipment, records, personnel and business operations involved in the deal, while recognising that the legal requirements cannot be satisfied merely by labelling a document a business transfer. The transaction must be assessed on what is actually transferred.

A purchase agreement should also preserve access to the historical evidence. The buyer may need old production instructions, purchasing records and witness information to establish the position later. A seller’s retention policy that destroys those records after closing can undermine the practical value of the claimed defence even when the commercial transaction itself is completed.

Distinguish this from a licence granted by the patent owner. A contractual patent licence operates under its own terms and Article 125. The guide to a licensee’s enforcement rights addresses a different legal status. An earlier user does not become an exclusive licensee merely because the patent owner cannot prohibit qualifying continued use.

What happens to products placed on sale by the prior user?

Article 87(2) states that acts concerning products placed on sale by the persons described in paragraph 1 fall outside the patent’s protection. For customers and distributors, the source of the goods therefore matters. Preserve invoices and product identifiers linking the goods to the qualifying earlier user’s activity.

This rule should not be expanded into blanket immunity for every product sold by a company that asserts prior use. The claim to protection still depends on paragraph 1 and its limits. Nor does Article 87 resolve separate trademark, design, regulatory or contractual issues. A conclusion concerning one patent is not a general market-access certificate.

A downstream buyer should ask for a reasoned explanation of the supplier’s position rather than rely on the phrase prior user in an invoice note. The necessary commercial assurance and allocation of risk can be addressed contractually, but the contract does not bind the patent owner to accept an unsupported defence.

Prior use is different from prior art and patent invalidity

Article 83 defines the state of the art by reference to what was publicly accessible anywhere in the world through the specified forms of disclosure. Article 87 instead concerns qualifying use or preparations in Turkey by the person asserting the protection. These provisions answer different questions. A private manufacturing history is not automatically a public disclosure, and a foreign public document does not automatically establish local prior-user status.

If the evidence shows an earlier public disclosure, it may require a separate validity analysis under Articles 82, 83 and 138. Our patent invalidity guide explains that route. The existence of an Article 87 position does not itself cancel the patent or grant the earlier user ownership of it.

There are also separate statutory protections for certain good-faith use during a loss-of-rights period followed by restoration under Article 107(3). That is not the same chronology as Article 87. Identify the legal event relied upon before selecting the provision; a period of apparent lapse should not simply be described as use before the original application.

Responding to a patent warning with a coherent evidence file

Combine the patent record, a claim-based description of the relevant technology, dated Turkish-use evidence and the business’s ownership history. Separate established facts from assertions still requiring proof. Preserve manufacturing secrets through an agreed secure channel rather than sending complete production archives with an initial commercial reply.

The procedural response depends on whether litigation already exists and what relief is needed. Article 154’s non-infringement declaration mechanism has its own conditions and restriction concerning persons already sued for infringement. Our patent warning guide explains that distinction. A claimed Article 87 defence is not, by itself, an interim court order suspending enforcement.

The objective is a supported, bounded position: who qualifies, what activity is protected, why the timing and good-faith requirements are met, and how continued activity stays within the statute. That analysis is more useful to an investor than a general statement that the factory used the technology first.

Official sources

The primary source is Industrial Property Code No. 6769, particularly Articles 83, 87, 89, 93–94, 107, 125, 138 and 154. The TÜRKPATENT legislation directory provides official legislation links. This English explanation is not an official translation or a conclusion about a specific factory’s entitlement.

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