A patent allows innovators to protect their inventions in Spain and put a just value on the efforts put forth in research and product development.
Conditions for an invention’s patentability
To be patentable, there must be a new invention involving an activity that is susceptible to industrial applicability. The novelty of the invention is central to its patent. It is therefore important for an inventor to avoid disclosure and ensure the invention remains a secret until filing a patent application. A patent protects the invention for 20 years and the application confers exclusive rights to its holder. The use or production of patented products, without the owner’s consent, is forbidden and allows the owner to initiate infringement actions.
Application strategy
It is possible to protect one’s invention on three levels.
The national patent
To protect one’s invention in Spain, submitting a national patent application to the Spanish Patent and Trademark Office is possible. The procedure is complex. The inventor must complete the application in Spanish and pay a fee. The Office conducts a review of the form and substance of the product and makes a research report. Publication is necessary to allow any third parties to oppose the patent application. Thereafter, the Office may grant a national patent and the invention will be protected in Spain.
The European patent
An inventor may also apply for protection at the European level. This option is possible when one wishes to protect an invention in several European countries. The European patent is not unified and confers the same rights as a national patent. The procedure is divided into two phases: the European and the national phase. During the European phase, the inventor must complete the application in one of the three following official languages: French, English, or German. During this stage, the inventor must clarify the countries in which protection is sought. The second phase is the national phase, which requires one to seek validation before the national patent offices. In Spain, the applicant must request a translation and pay a fee.
The applicant should note that once issued, the European patent is valid in all countries without the need for national validation. However, Spain does not adhere to this rule. Therefore, national validation in Spain will be necessary to protect an invention in Spain.
The international patent
Lastly, it is possible to make an international application. This application is similar to that of the European patent. The Patent Cooperation Treaty (PCT), which has 148 signatories, allows an inventor to protect his or her invention on an international level whilst simplifying the procedures related to completing multiple applications. In Spain, just as with the European patent, it is not possible to obtain a single patent. Validation must be sought before the Spanish Office for the patent to be effective.
The European and International patents are not unitary and therefore confer the same rights as a national patent.
Defending a patent
Once registered, the patent must be defended as a national patent.
Any third party who wishes to obtain a cancellation of the patent may challenge it. The latter may bear his application before the Spanish courts. This action is governed by Law 11/1986 on patents.
The patent must also be defended against counterfeiting. In case of an infringement in Spain, the action must be brought before the Spanish courts.
The use of Spanish legal advice is therefore necessary for both the application as well as for the defence of a patent.
Jade Pilato & Nicolás Melchior
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