Powers of attorney for Patent applications and validation of European Patents in Spain
The Spanish Patent and Trade Mark Office (OEPM) has recently issued a communication to the Spanish Association of Industrial Property Attorneys who requested a clarification about the rumours of a new practice relating the powers of attorney for Spanish Patent applications and validations of European Patents in Spain.
OEPM, recognizing the fact that Articles 17-1 and 64 of the Implementing Regulation of the Spanish Patent Law require the filing of a power of attorney by a representative in any patent activities before the Spanish Patent and Trade Mark Office, and notwithstanding that these articles of the Implementing Regulation have not been amended, makes the interpretation that, due to the fact that Spain has signed the PLT, and taking into account that Spain waived in 2009 the need to file a power of attorney for PCT filings, extends said waiving to national patent cases on grounds of Article 2.1 of PLT.
As it is known, Article 7 of PLT indicates that a contracting party may request a power of attorney to representatives, so, in our view, a waiving of this requirement requires an amendment of the Implementing Regulation of the Spanish Patent Law, and not a simple interpretation of the Spanish Patent and Trade Mark Office.
Therefore, it is doubtful whether this waiver of powers of attorney has a legal support.
Furthermore, the filing of a power of attorney, even if not required by OEPM, might have a positive impact in the interpretation to be given to the duty of confidentiality imposed to Spanish Patent Attorneys by the law and may reinforce privilege attorney-client communications.
In conclusion, even if OEPM does not currently require the filing of powers of attorney for Spanish Patent cases, we advise to continue filing them voluntarily.
Powers of attorney can be individual (only for one case) or general (that would serve for an unlimited number of cases of the same applicant). They can be filed in original or as scanned signed copies.
Notwithstanding the above, if our clients and associates prefer not to file powers of attorney for the above Patent cases, we will be proceeding accordingly.
