Process Patent Infringement in Turkey: Imported Products and the Burden of Proof
A process patent can affect products imported into Turkey even when the manufacturing plant is abroad. Article 85 of Industrial Property Code No. 6769 covers specified dealings in products obtained directly by the patented process. Article 141 identifies infringement and provides a special evidential rule: a court can require the defendant to prove that its method of obtaining the same product or substance differs from the patented process. A further statutory presumption applies when the product or substance obtained by the patented process is new.
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The distinction between those two evidential rules is essential. The court’s power to require proof of a different process is not the same as automatically presuming infringement in every case involving similar goods. This guide explains that distinction for foreign patent owners, overseas manufacturers and Turkish importers. It also addresses the defendant’s express statutory interest in protecting manufacturing and business secrets, the records needed for a meaningful technical comparison and the limits of a supplier’s general assurance that its production is lawful.
What is being protected: a product, a process or both?
Begin with the claims, not the name of the technology. A patent can include claims directed to different categories of subject matter. A dispute about a patented manufacturing method therefore requires identification of the specific process claim, its steps and the resulting product. A sales description such as a chemical ingredient, industrial coating or manufactured component does not reveal which legal claim is asserted.
Article 89 of Code No. 6769 governs the scope of protection. The claims determine that scope, interpreted with the description and drawings; equivalent elements also require consideration. A technical opinion should therefore compare the actual production route with the relevant claim features rather than rely on the fact that a machine has a different trade name or comes from a different supplier.
A conclusion that a process claim is not infringed does not automatically resolve a separate product claim. Likewise, proof that a product can be made by an alternative method does not prove that the shipment in dispute was actually made that way. Distinguish technical possibility from evidence of the particular production method used for the relevant batch.
Manufacture abroad does not remove the Turkish import question
Article 85(2)(ç) gives the patent owner rights concerning sale, use and importation of products obtained directly through the patented process, together with possession for the specified purposes beyond personal needs. The commercial analysis must therefore include what happens in Turkey after manufacture. It is not enough to say that the manufacturing equipment stands outside Turkish territory.
Article 141(1)(c) separately describes unauthorised use of the patented process and specified dealings in products obtained directly by an unauthorised use of that process where the person knows or ought to know of that unauthorised use. The listed acts include sale, distribution, other placement in commerce, importation for those purposes, commercial possession, use and offers to contract. Identify the defendant’s actual act and the relevant knowledge issue rather than applying one undifferentiated accusation to the entire supply chain.
This does not mean a Turkish patent turns every activity at a foreign factory into an act governed by Turkish infringement rules. The Turkish acts and their connection with the directly obtained product must be established. A manufacturer, trading company, importer and distributor can hold different evidence and carry out different acts. Their corporate relationships should be documented without assuming that a parent company’s files prove what every subsidiary knew or did.
The word directly matters. A finished article containing an input made by a disputed process raises a question about the connection between the patented method and the goods actually dealt with. Do not simply treat every downstream object as the direct product, or exclude it without analysis. Explain the manufacturing chain and the product identified by the claim before drawing the legal conclusion.
Article 141(2): the court’s power to require proof of a different process
The first sentence of Article 141(2) applies where the patent concerns a process for obtaining a product or substance. It empowers the court to ask the defendant to prove that the process used to obtain the same product or substance differs from the patented one. The statute uses a court-controlled evidential mechanism; it does not give the claimant a private right to enter the competitor’s premises or demand unrestricted access to its production systems.
A defendant should prepare an answer that addresses the manufacturing route actually used. A generic declaration that the company respects intellectual property rights is not a technical comparison. Relevant material can include process flow diagrams, manufacturing instructions, batch records, equipment configuration and test results. Which records matter depends on the disputed claim features, and the list is a practical preparation guide rather than a statutory requirement to disclose every listed document.
The response should also distinguish different production versions. An alternative process introduced after the dispute does not automatically prove how earlier batches were manufactured. Preserve historical instructions and change-control records. If different factories or subcontractors produced goods under the same commercial product code, the evidence should identify the source of each disputed shipment rather than treating the code as proof of a single manufacturing method.
The new-product presumption is a separate rule
The next sentences of Article 141(2) address a product or substance obtained by the patented process that is new. In that situation, every identical product or substance produced without the patent owner’s permission is presumed to have been obtained by the patented process, and the person asserting the contrary must prove it. The condition concerns the newness of the product or substance, not merely the fact that the process patent was granted recently.
Do not replace those conditions with visual similarity. The file must address the identity of the product or substance, the relevant newness question and the absence of permission. A photograph of comparable packaging does not establish a chemical identity or a manufacturing route. Product testing and technical documents must be tied to the actual product in dispute.
The presumption is rebuttable. Evidence of the process actually used can therefore be central to the defence. At the same time, the special rule does not relieve the parties of every other issue in the case: the right asserted, its scope, the acts complained of, standing and the conditions of the remedy sought still need their own analysis. A shifted evidential burden on one issue is not a final judgment on all of them.
| Question | Correct distinction |
|---|---|
| Can the court require the defendant to explain a different production route? | Article 141(2) gives the court that power for a process obtaining the same product or substance. |
| When does the express statutory presumption arise? | When the product or substance obtained by the patented process is new, subject to the statutory conditions. |
| Does similarity of packaging prove the manufacturing method? | No. The product and process require a technical comparison. |
| Can business secrecy be ignored? | No. The same paragraph expressly requires consideration of the defendant’s legitimate secrecy interest. |
Manufacturing and business secrets remain legally relevant
The final sentence of Article 141(2) requires the defendant’s legitimate interest in protecting manufacturing and business secrets to be taken into account. This is an express statutory protection, not a reason to assume that secrecy concerns are irrelevant once infringement is alleged. It is also not an automatic right to refuse every question or disregard a court order.
Identify precisely which information is sensitive and why. A blanket label on an entire production archive gives less practical guidance than a reasoned explanation of confidential process parameters, formulas or commercial data. Separate information needed to resolve the patented-process comparison from unrelated research, pricing and customer material. The requested protection should be connected to the actual information and the issue the court needs to determine.
Seek a court-managed approach to the scope and handling of technical evidence. Depending on the proposed examination, that can involve requesting targeted questions, limits on irrelevant material and appropriate handling arrangements for sensitive documents. These are requests to be assessed under the applicable procedure, not a promise that a particular foreign-style confidentiality regime or an automatic attorneys-only arrangement exists in every Turkish case.
Confidentiality must not become destruction or alteration of evidence. Preserve originals, explain redactions and document the source of technical records. An overseas supplier should agree a secure route for legally relevant material instead of emailing trade secrets to every distributor or withholding all information from the team responsible for the defence.
Build a batch-specific evidence trail across the supply chain
Start with the goods: product designation, batch or serial identifier, quantity, invoice, shipping reference and importer. Then connect that commercial record to the manufacturing site, production date and process version. This connection is especially important where an importer buys through an intermediary and does not own the factory. The importer needs evidence about its goods, not merely a general description of the manufacturer’s capabilities.
For each disputed claim feature, state what evidence supports the proposed comparison and what remains unknown. Preserve the original-language document together with any translation. A technical translation should maintain the distinction between a process step, an optional operating range and a characteristic of the resulting product. Changing those distinctions can change the infringement analysis rather than merely improve readability.
Record samples and testing carefully. Identify who supplied a sample, its relationship to the shipment and the test conditions. Testing the current production version cannot automatically establish the composition or manufacture of a historical batch. A defensible chronology distinguishes contemporaneous records from later explanations and makes the limitations of each item visible.
A supplier indemnity or promise of non-infringement is commercially important but does not decide the patent owner’s statutory claim. Review who must provide documents, control a defence, approve a settlement and bear particular costs under the actual contract. A contractual right to seek reimbursement and the obligation to respond to Turkish proceedings operate on different legal planes.
Document production, damages and urgent measures are separate questions
Article 150(3) allows the right holder to ask the court to order production of documents relating to use of the industrial property right for evidence preservation before a damages action or for determining the amount of loss in an existing damages action. The request should be tied to that statutory purpose. It is not a general right to obtain every document held by a competitor, and it is not permission for private access to another company’s systems.
Articles 150 and 151 govern compensation and lost profit. The latter offers specified alternative approaches, including the infringer’s net profit or an appropriate licence-fee assessment. Sales turnover is therefore not automatically the amount of recoverable loss. The evidence used to establish a manufacturing method and the financial records used to quantify a claim answer different questions, even when both are sought in the same dispute.
Article 159 separately governs interim measures where its conditions are established. The process-patent evidential rule does not automatically freeze imports, seize a factory or prohibit a defendant’s entire business. The measure requested must be justified, and the statutory provisions concerning seizure protect production unrelated to the allegedly infringing products. A warning, an application for relief and an order actually made must be distinguished.
Choose the procedural response without confusing infringement and validity
An allegation that the production route differs from the claims concerns infringement. An allegation that the patent should never have been granted concerns validity. Our guide to patent invalidity under Article 138 explains the separate grounds and the distinction between national and European patents. An invalidity allegation should not replace the necessary evidence about the actual process used.
For a planned Turkish launch before infringement proceedings have been brought against the interested person, Article 154 provides the non-infringement declaration route under its conditions. Once an infringement action has been brought against that person, the separate Article 154 route is restricted. The pre-launch patent warning guide explains that procedural distinction and why filing a case is not itself permission to trade.
Finally, check any licence relied upon: the licensed person, territorial reach, products, process and sublicensing position. Permission given to one group entity is not automatically permission for every company in the distribution chain. The international IP licence guide addresses the separate question of governing law. The practical objective is a coherent file linking the Turkish right, the imported goods, the actual process and the precise defence or remedy sought.
Frequently asked questions
Can a Turkish process patent affect imported products?
Yes. Articles 85 and 141 address specified dealings in products obtained directly by the patented process. The Turkish acts, the product’s connection to the process and the applicable statutory conditions must be assessed.
Does every process-patent case automatically reverse the burden of proof?
No. Article 141(2) distinguishes the court’s power to require proof of a different process from the express presumption concerning a new product or substance obtained by the patented process.
Is a newly granted process patent enough to trigger the new-product presumption?
No. The statutory condition concerns the newness of the product or substance obtained by the process, not simply how recently the patent was granted.
Can the defendant protect manufacturing secrets?
Article 141(2) expressly requires consideration of the defendant’s legitimate interest in protecting manufacturing and business secrets. That protection does not authorise destruction of evidence or disregard of court orders.
Does a supplier’s non-infringement assurance settle the dispute?
No. It may be relevant to contractual rights, but it is not a judicial determination of the patent’s scope or the manufacturing method used for the disputed goods.
Will evidence of a later redesign explain earlier shipments?
Not automatically. Historical shipments must be linked to their actual production versions. Preserve change-control records and batch-specific manufacturing evidence.
Can the patent owner enter a competitor’s factory to obtain proof?
Article 141(2) creates a court-controlled evidential mechanism, not a private right of entry or unrestricted access to another company’s premises and systems.
Is all sales revenue automatically recoverable as damages?
No. Articles 150 and 151 govern compensation, including specified methods for lost profit. Net profit and a licence-fee assessment are not the same as total turnover.
Does showing a different process resolve a product-patent claim?
Not by itself. A separately asserted product claim requires its own scope and infringement analysis. The disputed claims must be identified individually.
Does the evidential rule automatically stop imports?
No. Interim measures require a separate assessment under Article 159 and the applicable procedural rules. An allegation or application must not be confused with an order actually granted.
Official legal sources
This guide explains Industrial Property Code No. 6769, particularly Articles 85, 89, 141, 150, 151, 154 and 159. Consult the TÜRKPATENT legislation directory for official legislation links. The Turkish statutory text governs; this English explanation is not an official translation, a technical opinion on an identified process or a guarantee of a litigation outcome.
Discuss a process-patent dispute involving Turkey
Provide the patent number, your role in the supply chain and any court deadline. Do not submit confidential formulas, production settings or trade secrets through the initial form; arrange a secure document channel first.
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