Plant varieties cannot be protected with patents in Turkey. Yet, according to the Turkish Industrial Property Code, there are certain points that these two intellectual property rights may have to be considered together.
Under Article 85 (4) of the Turkish Intellectual Property Code’s Patent and Utility Model Book, it is stated that:
‘…A small farmer whose definition is made in the Law on Protection of Breeder’s Rights for New Plant Varieties dated 01.08.2004 and numbered 5042 has the right, in his own land which they operate, to use the reproduction material that derived from the product in the result of the production made by a patented product provided from the patentee; or sold by his permission; or obtained by another commercial way, in order to do new productions in their own land which they operate. This tenancy shall be subject to the provisions of the Law number 5042.’
Under Article 129 (1) of the Turkish Intellectual Property Code’s Patent and Utility Model Book, the conditions on the compulsory license are given as:
‘…Compulsory license may be given in the presence of at least one of the conditions specified below
d) If the breeder fails to develop a new plant variety without infringing on a previous patent,
(6) If the patentee cannot use the patent right without infringing on the right of breeder belonging to a previous plant variety, this situation may be subject to compulsory licensing. In this case, the provisions of Law numbered 5042 shall be applied.
(7) If a license is granted pursuant to subparagraph (d) of the first paragraph, then the patent owner may demand the giving of the license to himself to use the protected plant variety and if a license is granted pursuant to the sixth paragraph, the holder of breeder right may demand mutually the giving of a license to himself to use protected plant variety under reasonable terms.
(8) For licenses specified in subparagraph (d) of the first paragraph and in the sixth paragraph, the demandant may request the court to issue a compulsory license by means of proving that;
a) it applies to patentee or holder of breeder right belonging to a new plant variety to obtain a contractual license but cannot get any results,
b) compared to protected plant variety or invention protected by the patent, next invention or plant variety show a significant technical advance that largely provides economic benefits.’