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INVENTIONS

"The accurate drafting of a patent is fundamental in order to be able to successfully deal with its prosecution and in order to try to obtain adequate protection against possible infringers. The same applies in the case of patents translated from other languages. The enforceable text will be the Spanish text, so it is very important to produce a high quality translation.

Our firm has an experienced and qualified team, comprising Industrial Property Attorneys, engineers and technicians who specialize in various fields of technology and have a good command of foreign languages and can provide you with advice and help you to prepare, translate, file and prosecute patent and utility model applications with the utmost professionalism."

 

1.   REQUIREMENTS FOR PATENTABILITY. 

The Spanish Patent Law 11/1986 of 20th March grants protection in Spain to inventions that comply with the following requirements:

  • novelty.

  • inventive step.

  • industrial application.

The following are excluded from patentability:

a. Discoveries, scientific theories and mathematical methods.

b. Literary or artistic works, or any other aesthetic creation (protected by copyright).

c. Plans, rules and methods for carrying out intellectual activities, for playing games or for doing business, as well as computer programs (protected by copyright).

d. Forms of presenting information.

e. Methods for the treatment of a human or animal body by means of surgery or therapy, diagnostic methods applied to a human or animal body.

f. It has only been possible to patent chemical and pharmaceutical products and 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.

g. Inventions whose commercial exploitation is contrary to public order or morality. In particular, the following cannot be patented: processes for the cloning of human beings, processes for the modification of the germline genetic identity of human beings, the use of human embryos for industrial or commercial purposes, 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 the animals resulting from these processes.

h. Plant varieties (protected as Plant Varieties) and animal races.

i. Essentially biological processes for obtaining plants or animals (those consisting wholly in natural phenomena such as cross-breeding or selection)

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.   MEANS 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 the prior art.

Prosecution:
i) 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 filing date (or priority date, if applicable), the SPTO shall draw up a Search Report on the state of the art, which comprises those relevant documents that amount to a prior disclosure of the invention and a written opinion (which includes an evaluation of the patentability 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.

ii) With prior examination and oppositions by third parties: it is possible to optionally apply for the application to be examined by the SPTO in terms of novelty and inventive step, in which case a two-month 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 filing date of the application.

Maintenance fees: as of the third anniversary of the filing date of the application, annual fees to maintain the patent in force must be paid.

b) PATENT OF ADDITION.
The possibility exists 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 patents of addition, provided that the main patent is kept alive.

Novelty and grant procedure: the same as for the patent of invention.

Term of protection: The period of life that remains for the main patent.

c) UTILITY MODEL.
It confers protection to inventions consisting in providing an object with a form, structure or constitution from which some practical advantage may be gained for its use or manufacture, such as, for instance, utensils, instruments, tools, devices, mechanisms or parts thereof. Its basic features are:

Novelty: As opposed to the case of patents, a utility model only requires novelty in Spain. That is to say, it is not necessary for the invention to have been disclosed in Spain by means of a 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 lesser degree of inventive step than patents).

Prosecution: 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 third parties to file oppositions arguing earlier rights, or lack of novelty or inventive step.

Term of protection: 10 years from the filing date of the application.

Maintenance fees: as of the third anniversary of the filing date of the application, annual fees to maintain the utility model in force must be paid.

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