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Pre-Right of Use in Patent Law
In patent law, the bona fide inventor who makes an invention simultaneously with the patent owner is allowed to use the invention within the reasonable needs of their business without permission from the patent owner. This study will briefly explain the scope of this right, which is defined as a pre-right of use and the conditions sought for the way this right is established.
Historical Development of Patent Rights
The first approaches to Patent Law emerged in Central Europe during the Renaissance. The first codified patent law was introduced in Venice in 1474. But, while patent law lost its importance again in Central Europe in the process of technological and economic regression caused by the Thirty Years War, the entry into force of ‘’The Statute of Monopolies’’ in England in 1624 was a milestone for development. In 1791, the Patent Law entered into force in France.
Afterwards, steps were taken in Russia and Italy too. However, for a long time, the idea of preserving inventions was deemed economically unsuitable; this perception changed only after 1870. The first uniform German Patent Law entered into force on April 25th, 1877; The Imperial Patent Office was opened on July 1st, 1877.
It protected the invention to the first applicant, whether they were a real inventor or not. In 1885, it was also started to be protected by the ‘’Patent Monopoly Act’’ in Japan. On the other hand, Turks issued ‘’Ottoman Invention Law’’ in 1879 by directly translating the ‘’1879 French Patent Law’’.
The first internationally signed contract is the ‘’Paris Convention’’. The convention was signed by the 11 countries in 1883 and subsequently revised six times. Another important agreement is the ‘’Patent Cooperation Treaty’’. This agreement that allows the application for international patents was signed in 1970.
What is a Patent?
The definition of the patent is not clearly indicated in laws. The Turkish Language Association defined the patent as a document of the invention. There are also many definitions of the patent in the doctrine. In the light of all these, we can say that the patent consists of three elements;
- Industrial Applicability,
Every invention can not be granted a patent. A patent will be granted as long as the invention contains these three elements. The patent application protects the patent owner as stated in the Turkish Industrial Property Act article 97 subclause 4. This protection provides the patented invention only used by the allowed ones by the patent. It is a relative right. It also gives the authority to prevent people who do not have permission from using the invention. These rights can be limited with the pre-right of use.
Using of The Pre-Right of Use in Patent Law
The Pre-Right of Use is a relative right such as the patent right. This right is given for the continuation of the use of the patented invention in return for the effort by another bona fide person who prepares and uses the invention at the same time (on the priority or the time of delivery). The 3rd person must have performed this use and effort independently and unaware of the patent owner.
The Pre-Right of Use which only gives the right to use is a right given to the enterprise. This bona fide person must have started using it in the country and be the possessor of this invention, which is the subject of the patent. Possession here means having the idea and having the invention at the applicable stage. It is also essential that it be used within the country. The Pre-Right of Use condition is not provided by started to be used the invention abroad.
The bona fide person who ensures these conditions in accordance with the law obtains the Pre-Right of Use. This right can only be used to meet the requirements of the enterprise.
The Pre-Right of Use is dependent on the enterprise, and therefore it is possible to assign it together with the enterprise. The right does not expire with this transfer. The ending definitively of the use of the right occurs in cases such as the failure to provide the conditions or the closure of the enterprise.
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