24 Oct

The intellectual property rights (IP) are conceptually is linked to both intellectual and industrial rights in Turkish legislation. Intellectual property rights are almost related to the intellectual and artistic works, linked rights (neighboring rights), computer programs and databases and protected with royalty, while industrial rights contain patents, utility models, trademarks, industrial designs, topographies of integrated circuits (chips), geographical indications, plant varieties, other names and signs, trade secrets (know-how, undisclosed information) and they are protected with industrial and exclusive rights.

However, the intellectual property rights in defense industry are inextricably linked to the generation and protection of new inventions and developments in defense technologies contributing to both national strategy and social objectives.

In this context the management of IP rights is likely to play a significant role for developing, securing and protecting of the defense technologies.Further; several governments have taken initiatives to introduce stronger enforcements of IP laws. EU Directive in 2004 concerns the measures and procedures necessary to ensure enforcement of IP legislation. In U.S, the government is taking at the highest level to communicate and influence the governments of other countries to stop counterfeiting and piracy[1]. Also Turkish Defense Industry and Ministry of National Defense (MND) must take into account IP subject seriously as a developing and exporting sector. For Example British MOD uses following defense conditions (DEFCONS) and their associated defense forms (DEFFORMS)[2] as IP procedures in their contracts regarding the conditions required.

  • DEFCON 14 (Edition 11/05) – Inventions and Designs Crown Rights and Ownership of Patents and Registered Designs: Used to secure rights in respect of patented inventions and registered designs made in the course of and resulting from work under the contract.
  • DEFCON 15 (Edition 02/98) – Design Rights And Rights To Use Design Information: Provides the right to copy and use any information to which the DEFCON applies for the purpose of competitive procurement of delivered goods, as well as other rights including contract monitoring.
  • DEFCON 16 (Edition 10/04) – Repair and Maintenance Information: Provides rights of use to monitor work under the contract and to inspect test and evaluate the delivered Information and goods.
  • DEFCON 19 (Edition 01/76) – Free User, Maintenance and Supply of Drawings: Gives the MOD the right to make use of drawings maintained and supplied by a contractor to facilitate future purchase of goods from a different contractor.
  • DEFCON 21 (Edition 10/04) – Retention of Records: Requires the contractor to maintain a control copy of all deliverable information. This copy is the property of the MOD.
  • DEFCON 90 (Edition 11/06) – Copyright: Allows the MOD to copy certain Copyright works delivered under a contract. The information can be used within any Government Department and for defense contracting purposes provided that no part of the information has been marked as proprietary and subject to restriction of such use.
  • DEFCON 91 (Edition 11/06) – Intellectual Property Rights In Software: Sets out MOD rights with regard to use of software and software documentation generated and supplied under the contract. It also addresses levy in the event of commercial sales.
  • DEFCON 126 (Edition 11/06) – International Collaboration: Gives the MOD the right to copy and use certain copyright work furnished by the contractor for the purposes of an International Collaboration Agreement, subject to third party rights and fair and reasonable terms for use.
  • DEFCON 703 (Edition 11/02) – Intellectual Property Rights – Vesting in the Authority: This condition is contrary to the MOD’s usual contracting policy and is used only in exceptional circumstances in fully funded contracts. It provides that all the results of the work undertaken under the contract (foreground information) will belong to the MOD.
  • DEFCON 705 (Edition 11/02) – Intellectual Property Rights – Research and Technology: This is a comprehensive condition covering technical information, patents and designs.

These explain the good way how to frame the IP in Turkish Defense. First of all, a strict IPR policy based on a well-done IP law must be determined by the MND. This policy must be enforced by contracts formed with second and third parties. The following items and their connections shall be used to determine the IP policy in defense:

Coordination of Agencies: Governmental Institutes, military R&D centers, Scientific and Technological Research Council of Turkey (TÜBİTAK), Turkish Armed Forces Foundation affiliated companies like ASELSAN, HAVELSAN, ROKETSAN and TAI (Turkish Aerospace Industry), and the Machinery and Chemical Industry Cooperation (MKE) etc., domestic business firms, international business firms, the other state governments and the whole relation between each other.

The Protection Categories: This is crucial to provide the distribution level of information between the agencies. For example it can be formed three or more categories like Category (A), Category (B), Category (C) etc. Category A shows the free of charge right of unrestricted use of technical information between the contracting authority and the government participant. Category (B) sets some provisions to use technical information between agencies and the third parties, Category (C) shows that the distribution of technical information affects the national security and goes on.

Implementation of IP Items: This explains how will be used the IP items which covers all forms of IP rights including patents, design rights, copyright and other rights in technical information.

The Stated IP Conditions: It can be formed as clauses by taking into account when and how inventions are made, in which conditions they are executed. For example, Clause 1 of the Condition secures ownership for MND of all rights in intellectual property generated in the performance of work under the Contract (the “Results”). Clause 2 requires that copyright works produced under the Contract, such as technical reports, are to be marked with a Crown copyright legend.

Finally, after the policies formed and implemented, the IP rights should be strictly observed by the IP lawyers and specialists during the IP rights validity period.

[1]VK Gupta, India: IP rights and the National Security, National Institute of Science, Technology and Development Studies, New Delhi, Revised in 2008.

[2]The Commercial Toolkit, DEFCON Series – MOD Defense Conditions Guide – Last Updated 01/08/11


Herdem Law Firm, Istanbul Turkey

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