14 November 2018 Wednesday
Novartis AG (no. 2015/11867, 14 November 2018)
The applicant is a company of pharmaceutical industry, which operates in several countries over the world. It obtained a patent for a medication used in the treatment of leukaemia and had this patent published in the European Patent Bulletin. The company’s request for validation of the European patent in Turkey was also ratified by the Turkish Patent and Trademark Office, and the relevant registration procedure was completed.
Another firm operating in the same industry filed an action before the incumbent civil court for intellectual and industrial property rights and requested nullification of the patent and its removal from the registration list, arguing that the patented item was already present among the patents that had been published in previous years.
The incumbent court obtained an expert report concerning the dispute from a board consisting of two professors who were specialists in the field as well as of one chemical engineer. The board delivered an opinion that the impugned patent had no innovative and state-of-the-art feature. Accordingly, the court decided to nullify the impugned patent and remove it from the list of patent registration.
The applicant company appealed the decision; however, it was upheld by the Court of Cassation. The applicant then requested rectification of the Court of Cassation’s judgment, which was also dismissed. Thereafter, the applicant company lodged an individual application with the Court.
The Applicant’s Allegations
The applicant maintained that its right to property was violated as its patent had been nullified.
The Court’s Assessment
The concept of patent emerged as a result of the need for the protection of inventions including products or procedures created by individuals through intellectual endeavours. In the Industrial Property Law no. 6769, it is set forth that all technological inventions shall be patented provided that they are new, involve an inventive step and are capable of industrial application.
The same Law also sets out that industrial rights, save for geographical indications and traditional specialities, may be assigned, transferred by inheritance, licensed, put in pledge, supplied as a collateral, attached or be subject to other legal actions. Therefore, patent is undoubtedly a property which has an economic value. Intellectual and industrial property rights fall within the scope of intangible goods and are a matter of the right to property enshrined under Article 35 of the Constitution.
In the present case, the public authorities did not directly interfere with the applicant’s right to property. Therefore, an examination as to the positive obligations incumbent on the State with regard to the right to property must be made in the case.
The State’s positive obligations entail the liabilities to form an effective legal framework including judicial remedies capable of providing procedural safeguards against the interferences with the right to property as well as to ensure that judicial and administrative authorities would, within this legal framework, take effective and fair decisions in disputes between individuals and private persons.
As required for the protection of the right to property, the State affords patent protection for inventions, considering similar procedures in the world. However, certain conditions are to be satisfied for an invention to obtain patent protection. A patent cannot be granted if these conditions are not satisfied. Accordingly, a granted patent may be nullified if it is subsequently revealed that these conditions have not been satisfied.
It has been accordingly observed that there are clear, accessible and foreseeable provisions of law as well as established case-law justifying the nullity of the patent in the present case. Besides, it has been concluded the applicant was able to effectively avail himself of the procedural safeguards inherent in the obligation to protect the right to property; and that given the findings and grounds specified in their decisions, the relevant courts did not exceed the limits of their discretionary powers.
Lastly, regard being had to the facts that public authorities have a certain degree of discretionary power in deciding which inventions are to be granted patent protection, and that determining such scope has also a significant bearing on the third parties’ rights and benefits, it has been concluded that the State’s positive obligations with regard to the right to property were fulfilled in the present case where the patent had been nullified for not satisfying the conditions set out in the law.
For the reasons explained above, the Court found no violation of the applicant’s right to property safeguarded by Article 35 of the Constitution.