In April 2018, the European Commission published a report assessing Turkey’s political situation, economic development, regional issues, and international obligations. Chapter 7 of the aforementioned study praises Turkey’s progress regarding the alignment of its laws with the European Union’s IP acquis communautaire. The Commission cites Turkey for having a “good level of preparation” and for maintaining “good progress on legal alignment with the EU acquis with the adoption and entry into force of the new Industrial Property Law in line with the recommendations made by the previous report.”

The Commission states that the Law’s entry into force is a positive step in aligning trademarks and design legislation with the European IP Law and updating Turkey’s IP rights system in accordance with international agreements and practices. Furthermore, Turkey has taken positive strides with the establishment of the Intellectual Property Rights Academy by the Turkish Patent and Trademark Office, and the introduction of the Regulation on the Code of Conduct and Disciplinary Measures for Trademark and Patent Agents. The Commission suggests that such endeavors “address a legal gap with regard to the liability” of agents registered with the Turkish Patent and Trademark Office. And regarding judicial enforcement, the report accounts that the “[Law] aims to ensure a higher level of legal alignment with the EU Enforcement Directive.” According to the report, Turkey has increased Customs controls at its borders and, as a result, the quantity of counterfeit goods seized by the authorities concerned has increased by 35 percent in 2016.

Despite such considerable achievements in Turkey, there are still considerable areas that require improvement. The Commission suggests that in order to improve enforcement measures to combat industrial and intellectual property infringements, there should be accelerated destruction procedure through dedicated IPR criminal courts. Even more so, increasing dialogue with IP rights owners through awareness campaigns on counterfeiting and piracy would educate the public on the importance of a strong IP rights protection system and the positive ramifications on the growth of the economy.

As is the case in most developing and emerging countries, the pharmaceuticals industry and the related patent landscape raise questions about the effective enforcement of the IP rights. For such countries, the two primary driving forces are (1) the developing local manufacturing industry, i.e. generics, and (2) the need for governments to cut down on healthcare costs. Turkey, like many countries in the region, is beginning to experience the challenges in balancing between the national needs and the international agreements by which the country is bound.

A recent case relating to the interpretation of medical treatment claims in Turkey is a good indicator of the country’s effective systems. In brief, whereas method of treatment claims are considered to be non-patentable subject-matter in Turkey, pursuant to Art. 6e of Decree-Law No. 551 pertaining to the protection of patent rights, this provision, shall not apply to the products and compositions (per se) used in connection with these methods nor to their process of manufacturing. According to the general interpretation of such a provision in the law, the use of a product as method of treatment is considered patentable. This provision in the law and the related implementing regulations do not define, however, how first, second and subsequent medical uses should be treated, nor does it disclose a position on Swiss-type claims.

With that said, as a signatory to the European Patent Convention, Turkey is under obligation to protect “second medical use” patents that have been validated in Turkey via EPC. Turkey hence adopts the provisions of the EPC when there are no explicit provisions in the national law regarding a particular matter. In this case, this is in reference to the medical use and acceptable claim format thereof. Accordingly, prior to the implementation of the EPC2000 rules, Swiss-type claims are upheld in Turkey, and upon implementation of the EPC2000, then second medical use claims should be considered as patentable subject matter.

In 2015, the Supreme Court issued its first decision on the patentability of second medical use claims in Turkey. In a recent case, the First Instance IP Court did not uphold the Supreme Court’s decision of the patentability of second medical use. The patent holder appealed the IP Court’s decision and the second appeal was sent to the Court of Appeals, whose decision was final and binding. The final decision of the Court of Appeals overruled the decision of the IP Court, finding that second medical use claims are allowed, based on the EPC and the Supreme Court’s decision.

Turkey remains a country with high aspirations that welcomes and depends on foreign investments. A healthy balance between the latter and local development is bound to be beneficial for the country’s own growth.

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