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INVENTIONS
1-
REQUIREMENTS FOR PATENTABILITY.
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The Spanish Patent Law 11/1986, 20th March grants protection
in Spain over inventions which comply with the following requirements:
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novelty. |
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inventive step. |
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industrial application. |
However, excluded from patentability are:
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a. |
discoveries, scientific theories and mathematical
methods. |
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b. |
literary or artistic works (protected by
copyright).
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c. |
Schemes, rules and methods for performing
mental acts, playing games or doing business and programs
for computers (protected by copyright).
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d. |
Presentation of information. |
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e. |
Methods for the treatment of the human
body by surgery or therapy. |
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f. |
It has only been possible to patent chemical
and pharmaceutical products and those products obtained
from microbiological processes since 7 October 1992. Prior
to that date, it was only possible to obtain patent protection
for the processes for obtaining these products. |
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g. |
Inventions contrary to public order or morality. In
particular the following cannot be patented: processes
for the donation of human beings, processes for the modification
of the germinal genetic identity of human beings, the
use of human embryoes for industrial or commercial purpose,
processes for the modification of the genetic identity
of animals which cause them suffering without any substantial
medical or veterinary use for man or animals and animals
resulting from these processes. |
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h. |
Plant varieties (that can be protected as Plant
Patents) and animal races. |
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i. |
Essentially biological processesfor obtaining plants
or animals (those that consist wholly in natural phenomena
such as cross-breeding or selection) |
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j. |
The human body, in different states of its constitution
and development, as well as the simple discovery of one
of its elements, including the sequence or partial sequence
of a gene. |
2.- KINDS
OF PROTECTION:
a) PATENT OF INVENTION.
Its basic features are:
novelty: worldwide.
inventive step: the invention shall not be obvious for a person
skilled in the art, taking into account all the prior art.
Prosecution:
a) without prior examination: the application is examined
in terms of formal requirements by the SPTO, then it is published
in the Industrial Property Official Gazette and, subject to
the payment of a fee that should be paid within 15 months
from the date of filing (or priority, if any), the SPTO shall
draw up a Search Report on the state of the art, which comprises
of those relevant documents that amount to a prior disclosure
of the invention. Nevertheless, there is no examination on
novelty or inventive step, and the patent is granted irrespective
of the documents cited in the Search Report.
b)With prior examination and oppositions by third parties:
it is posible to optionally apply for the application to be
examined by the SPTO in terms of novelty and inventive step,
in which case a twomonth term is set for any interested third
party to oppose the patent application.
This procedure involves paying an examination fee and a lengthened
procedure to grant. In this case, the patent is granted or
rejected according to the result of the examination and the
oppositions.
Term of protection: 20 years from the date of filing the application.
Maintenance fees: from the third anniversary of the filing
date of the application, yearly fees to maintain the patent
in force shall be paid.
b) PATENT OF ADDITION.
There exist the possibility of applying for an addition to
a patent to cover any improvements or developments of the
main patent. Annuity fees must not be paid in connection to
patens of addition, provided that the main patent is kept
alive.
Term of protection: The period of life that remains for the
main patent.
c) UTILITY MODEL.
It confers protection over inventions consisting on giving
to an object a form, structure or constitution from which
arise some advantage practically noticeable for its use or
manufacture, such as, for instance, utensils, instruments,
tools, devises, mechanisms or parts therefrom. Its basic features
are:
Novelty: as a feature to distinguish it from a patent, it
only requires novelty in Spain. That is to say, the invention
does not have to have been disclosed in Spain by means of written
or oral description, use or by any other means
Inventive step: the invention shall not be very obvious for
a person skilled in the art, taking into account all prior
art disclosed in Spain (thus, it requires a lower level of
inventive step than patents).
Processing: the application is examined in terms of formal
requirements and, afterwards, it is published in the Industrial
Property Official Gazette, opening a term of two months, allowing
oppositions arguing lack of novelty or inventive step to be
lodged.
Term of protection: 10 years from the filing date of filing
the application.
Maintenance fees: from the third anniversary of the filing
date of the application, yearly fees to maintain the utility
model in force shall be paid.
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