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CategoryPatent
Published7 August 2026
Authors
Uğurcan TekinPartner
Alican TekinPartner

Where the Claim Ends: Scope, Equivalents and What the File Says About You

A patent claim is read twice: once by an examiner deciding whether to grant it, and once by an opponent deciding whether to work around it. Turkish law treats those two readings as governed by the same rule. European practice reached the same position only in 2025, and the route it took explains what a claim actually has to do.

The Claim Defines the Scope; the Description Interprets It

Article 89(1) of the Industrial Property Code No. 6769 provides that the extent of the protection conferred by a patent application or a patent is determined by the claims, and that the description and drawings are used in interpreting the claims. The second sentence is unconditional. There is no threshold of ambiguity to cross before the description becomes admissible.

Article 89(2) sets the outer limits in both directions: the claims may not be construed narrowly by reference to their literal wording alone, but protection may not be extended beyond the features that a person skilled in the art would derive from the description and drawings. Article 89(3) states the balancing principle — the claims are interpreted so as to give the proprietor appropriate protection while affording third parties a reasonable degree of certainty and foreseeability.

Article 92(4) works in the other direction and is the provision that disciplines drafting: the claims are supported by the description, must define the subject matter for which protection is sought, must be clear and concise, and must not exceed the scope of the invention as described. A claim broader than what the description teaches is not a wide claim; it is an unsupported one.

The claim sets the boundary; the description is the map the boundary is read against.

G 1/24 and the Convergence

On 18 June 2025 the Enlarged Board of Appeal of the European Patent Office decided G 1/24. The order is short: the claims are the starting point and basis for assessing patentability under Articles 52 to 57 EPC, and the description and drawings shall always be consulted to interpret the claims when assessing patentability — not only if the person skilled in the art finds a claim unclear or ambiguous when read in isolation.

The decision displaced a line of Board case law under which the description became admissible only where the claim was unclear on its face. Its practical purpose was to align examination practice at the Office with how national courts and the Unified Patent Court read claims in infringement proceedings, so that the same document is not construed by two different methods depending on the forum.

For a Turkish practitioner the observation to make is a modest one, and it is about drafting rather than precedence. Article 89(1) is not qualified, so a Turkish file has always had to be prepared on the assumption that the description will be read together with the claim in both validity and infringement contexts. A drafting practice built for the pre-2025 European approach — a claim written to stand alone, with a description that says as little as possible — carries a risk in Türkiye that it did not carry at the European Patent Office, and after G 1/24 it carries that risk in both.

The EPO's 2026 Guidelines for Examination, in force from April 2026, reflect the decision and add a limit worth noting: the description and drawings may not be used to read into the claim a limiting feature that the wording of the claim does not indicate. Consultation is not rewriting.

Equivalents: The Three-Part Test in Statute

Article 89(5) states the doctrine of equivalents in terms that will be familiar from other systems: an element is generally accepted as an equivalent of an element claimed if it performs substantially the same function in substantially the same way and produces substantially the same result. Turkish law places the test in the statute rather than leaving it to case law, which makes the drafting consequence direct — the function performed by each claimed element, and the way it is performed, become the parameters against which a competitor's variant is measured.

Article 89(7) protects against two familiar attempts to narrow a claim after the fact: the claims may not be limited to the examples given in the description, and the fact that a product or process carries additional features, or does not fulfil every purpose stated in the description, does not by itself take it outside the scope of protection.

What You Said During Prosecution Is Part of the Record

Article 89(6) provides that in determining the extent of protection, the statements made by the applicant or the proprietor during the proceedings and during the term of the patent are taken into account. This is file wrapper estoppel expressed in statute, and it is broader than the phrase usually implies: it covers not only amendments made to secure grant but statements made at any point while the patent is in force.

The practical discipline follows. An argument advanced to distinguish a prior art document — that the claimed element is essential, that a particular variant lies outside the invention, that the effect depends on a specific configuration — is not a tactical statement confined to the examination file. It is a statement about scope that a defendant will produce years later. Responses to search and examination reports should be written with that audience in mind.

“Every sentence written to get a patent granted is a sentence that can be read back as a concession about what the patent does not cover.”

The Sequence That Governs the File

Article 96(1) requires the search request, with its fee, within twelve months of the filing date; failure means the application is deemed withdrawn. Article 97(1) provides for publication eighteen months from the filing or priority date, with earlier publication available on request. Article 97(2) allows third parties to submit observations after publication and states expressly that those submitting them do not become parties to the proceedings before the Office. Article 98(1) requires the examination request within three months of notification of the search report, again on pain of deemed withdrawal, and Article 98(4) caps the number of examination communications at three.

Article 99(1) is the provision that distinguishes patents from utility models in Türkiye: within six months of publication of the decision to grant, third parties may oppose on the grounds that the patentability conditions in Articles 82 and 83 are not met, that the invention is not disclosed sufficiently under Article 92, or that the subject matter extends beyond the content of the application as filed. Article 100(1) allows an appeal to the Re-examination and Evaluation Board within two months of notification of an Office decision.

The Renewal Fee Cliff and the Two-Month Rescue

Article 101(1) sets the term at twenty years from the filing date for a patent and ten for a utility model, without extension. Article 101(2) provides that annual fees fall due on the date the second year from the filing date expires and on the corresponding day and month each subsequent year. Article 101(3) allows late payment with a surcharge within six months of the due date.

Article 101(4) contains a rescue that is easy to miss. Where the six-month period passes without payment, the patent right lapses and the proprietor is notified — but if a restoration fee is paid within two months of that notification, the right becomes valid again from the date of payment. Article 101(5) preserves the rights acquired by third parties in the interval, with their extent determined by the court. The window is short, it runs from notification rather than from the missed deadline, and it depends on the Office having a current address for the proprietor — which is one more reason the register entry needs to be accurate.

The Route Outside Türkiye

Türkiye has been party to the Patent Cooperation Treaty since 1 January 1996. TÜRKPATENT acts as receiving office for Turkish nationals and residents, accepts filings only electronically, and takes applications in Turkish as well as English, French and German. Applicants filing through it may elect either the European Patent Office or TÜRKPATENT itself as International Searching Authority and as International Preliminary Examining Authority.

The national phase deadline for Türkiye is thirty months from the priority date, under both Article 22(1) and Article 39(1)(a) of the Treaty, with an extension to thirty-three months available on payment of an extension fee. Türkiye is a thirty-month jurisdiction, not a thirty-one-month one, and the extension is not automatic.

Türkiye has been a contracting state to the European Patent Convention since 1 November 2000. Validation is governed by Article 12 of the Regulation on the application of the Convention in Türkiye: a Turkish translation of the patent specification — description, claims and any drawings, not the claims alone — must be filed within three months of the mention of grant in the European Patent Bulletin, with a further three months available if the extension is requested within that first period and the fees paid with the request. The sanction is unforgiving: if the translation is not filed in time or the fee is not paid, the European patent is deemed invalid in Türkiye from the outset.

One structural point should be stated for completeness. The Unitary Patent and the Unified Patent Court are open only to European Union member states under enhanced cooperation. Türkiye is a party to the Convention but not a member of the Union, so unitary effect does not extend here and the Court has no jurisdiction over Turkish rights. A European patent must still be validated in Türkiye separately, and Turkish disputes are heard by the Turkish civil courts for intellectual and industrial property rights.

Sources

Related practice areaIndustrial Property Law→

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