Patentability of Computer Programs: Software Inventions in Turkey

A software company develops a new algorithm and wants the strongest possible protection against competitors. The first question that arises is: "Can I protect my software with a patent?" In Turkey, the answer is neither a simple "yes" nor a definite "no." The Industrial Property Law No. 6769 (SMK) excludes computer programs from patent protection as a general rule — yet this rule carries a nuanced exception that is vital for technology companies. This article explains when and how a software-based invention can be patented in Turkey.

Article 82 SMK and the "As Such" Exclusion

Under Article 82(1) SMK, patents are granted for inventions in all fields of technology, provided they are new, involve an inventive step, and are capable of industrial application. However, Article 82(2) declares certain subject matter not to be inventions and uses a precise phrase: where an application relates to these subjects, "only that subject matter or those activities as such" fall outside patentability. The listed exclusions include mathematical methods, schemes and rules for mental and business activities, presentations of information, and — crucially for our topic — computer programs, in subparagraph (c).

The key concept here is the "as such" logic. The law excludes a computer program as abstract software logic, not every invention in which software is embedded. This provision mirrors Article 52 of the European Patent Convention (EPC) almost word for word, and Turkish practice generally follows the case law of the European Patent Office (EPO) on this point.

Why Software Is Protected by Copyright by Default

Because computer programs are not the default subject matter of patents, the primary basis for protecting software in Turkey is copyright law. Article 2(1) of the Law on Intellectual and Artistic Works No. 5846 (FSEK) protects computer programs — including source code, object code, and preparatory design material — as literary and scientific works. This protection requires no registration; it arises automatically upon creation of the work.

But copyright has a significant limit: it protects only the form of expression of the code, not the underlying idea, method, or function. If a competitor rewrites the same functionality with entirely different code, no copyright infringement may occur. It is precisely here that the patent question re-emerges for software innovations that carry genuine inventive character.

The Technical-Effect Exception: When Can Software Be Patented?

The natural consequence of the "as such" limitation in Article 82(2) is this: if software produces a technical effect that goes beyond the mere logic of the program, the invention as a whole can become patentable. This category, known in EPO practice as a "computer-implemented invention," is generally accepted in Turkish practice as well.

The decisive test is whether the software provides an additional technical contribution beyond the "normal" physical interaction between the program and the computer. If the software merely expresses a task in code, it falls within the "as such" exclusion. By contrast, if the software improves how a machine, an industrial process, or the computer itself functions — for example, by increasing processing speed, reducing memory usage, improving a device's measurement accuracy, or controlling a production line — there may be a patentable invention with technical character. That invention must also meet the general requirements of Article 82(1): novelty, inventive step, and industrial applicability.

Patentable and Non-Patentable Examples

Concrete examples clarify the distinction:

• Generally not patentable (software as such): An accounting calculation method, a business-process algorithm, the mere coding of a mathematical formula, the user-interface flow of a mobile app, or software logic that merely organizes data.
• Potentially patentable through technical effect: An image-compression method that directs hardware so as to reduce processor load, control software that improves the physical response of a braking system, an encryption method that enhances the technical security of data transmission, or embedded software that processes sensor data to improve a device's performance.

In short, the line between an abstract idea and a technical solution determines patentability.

Strategic Choice: Patent, Trade Secret, and Copyright

There are three main ways to protect a software innovation, and the right choice depends on the nature of the invention:

• Patent: The strongest protection for new inventions carrying a technical effect. The application undergoes examination for novelty and inventive step at TÜRKPATENT, and protection lasts twenty years from the filing date (Article 101 SMK). In return, the application is published — meaning you disclose your invention.
• Trade secret: If an algorithm carries no technical effect, or if the patent process is commercially impractical, keeping the invention confidential (know-how, source-code protection, confidentiality agreements) is often the wiser path. A trade secret has no time limit, but it holds value only while secrecy is maintained and is vulnerable to reverse engineering.
• Copyright (FSEK): Protects the form of expression of the code automatically and free of charge, but not its function or idea.

In practice, these three routes are often combined: the technical core is patented, the source code is protected by copyright and trade secret, and the business model is secured through contracts.

Frequently Asked Questions

Can a mobile app itself be patented in Turkey? The app's software logic and interface alone are considered a computer program "as such" and are excluded from patenting under Article 82(2). If the innovation underlying the app provides a technical improvement in how a device or process operates, that technical solution may be patentable.

Can my software be protected by both copyright and patent? Yes. While the form of expression of the code is protected automatically under FSEK, an invention carrying a technical effect can also be protected by patent. Because the two protections target different elements, they can coexist.

If my algorithm cannot be patented, how do I protect it? The most common route is to keep it confidential as a trade secret: access restrictions, confidentiality and non-compete agreements, and source-code escrow arrangements. The form of expression is additionally protected by copyright.

How should a foreign technology company protect a software invention in Turkey? If the invention's technical effect meets the patentability threshold, protection can be secured in Turkey via Paris Convention priority, the PCT national phase, or a European patent. Otherwise, trade secret and contractual protections take priority. The right strategy should be set with a patentability assessment before filing.

How Mona Hukuk Can Help

Protecting software inventions is a sensitive area where legal characterization meets technical assessment. At Mona Hukuk, we provide domestic and foreign technology companies developing software and entering the Turkish market with patentability analysis, guidance on the patent–trade secret–copyright strategy choice, and legal support in intellectual property disputes.

For consultation in Antalya, you can write to contact@monahukuk.com or call +90 (242) 606 14 32.