Patents Laws in Spain
Spain's patent system is governed by the Spanish Patents Act (Ley de Patentes), with the most recent version being Act 24/2015, effective since 1 April 2017. The Spanish Patent and Trademark Office (OEPM) oversees patent administration and is an International Searching Authority under the Patent Cooperation Treaty (PCT).
๐ Patentability Criteria
To qualify for patent protection in Spain, an invention must meet the following criteria:
Novelty: The invention must be new, meaning it has not been disclosed to the public prior to the filing date.
Inventive Step: The invention must involve an inventive step, meaning it is not obvious to someone skilled in the relevant field.
Industrial Applicability: The invention must be capable of being used in any kind of industry, including agriculture.
Certain subject matters are excluded from patentability, including:
Scientific discoveries and mathematical methods
Aesthetic creations and literary or artistic works(
Schemes, rules, and methods for performing mental acts, playing games, or doing business
Computer programs
Methods for the treatment of the human or animal body by surgery or therapy, and diagnostic methods practiced on the human or animal body
๐ ๏ธ Patent Application Procedures
Applicants can pursue patent protection in Spain through three primary routes:
National Route: File directly with the OEPM under Spanish national law
European Route: File a European patent application via the European Patent Office (EPO), designating Spain as a contracting state.
International Route (PCT): File under the Patent Cooperation Treaty (PCT), designating Spain as a contracting state.
Applicants can choose between two procedures:
General Grant Procedure: The OEPM conducts a formal examination, and a search report is issued. Even if the report is unfavorable, the application can proceed to grant
Procedure with Preliminary Examination: The OEPM conducts a thorough examination, and a decision to grant or refuse the patent is made based on the findings.
๐ฐ Fees and Financial Support
Spain offers financial support to inventors, particularly natural persons and small and micro entities:
Fee Reductions: Applicants may benefit from a 50% reduction in filing fees, prior art search fees, substantive examination fees, and annual fees for the 3rd, 4th, and 5th years.
Subsidies Program: The OEPM provides subsidies to help cover expenses incurred by applicants for national patents and utility models, as well as international or European patents, provided they meet the qualifying requirements published each year in the Official State Gazette.
๐งฌ Special Considerations
Biotechnological Inventions: Biotechnological inventions are patentable in Spain, subject to ethical and public policy restrictions.
Pharmaceutical Products: Both product and process patents are admitted for pharmaceutical products. The "Bolar exemption" allows performing necessary studies, tests, and trials to obtain authorization for generic drugs without constituting patent infringement
๐งพ Patent Term and Maintenance
Patent Duration: Patents are granted for a period of 20 years from the filing date
Maintenance Fees: Annual maintenance fees are due to keep the patent in force.
Supplementary Protection Certificates (SPCs): For pharmaceutical and plant protection products, an SPC can extend the patent term by up to five years to compensate for the time it took to obtain regulatory approval.
โ๏ธ Enforcement and Legal Framework
Unified Patent Court (UPC): Spain is not a member of the Unitary Patent system or the Unified Patent Court. Therefore, Spanish patent holders are not subject to the UPC's jurisdiction and must rely on national courts for patent litigation.
Legal Framework: The Spanish Patent Law 24/2015, of 4 July 2015, and Royal Decree 316/2017 of 31 March 2017, which approves the Regulation on the implementation of Patent Law 24/2015, govern patent matters in Spain.
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