In today’s increasingly competitive and globalised business environment, innovation and creativity are fundamental to the development of new technologies, products and trademarks. And to encourage and protect that innovation, there is intellectual property, a legal system that grants exclusive rights over inventions, industrial designs, trademarks and more. Through the protection of patents, utility models, industrial designs, trademarks and trade names, exclusive rights are granted to owners. These allow you to use and market your intangible assets without interference.
What is intellectual property and how important is it?
In particular, intellectual property encompasses a set of legal rights that protect innovation and creativity in the industrial and commercial sphere. These rights allow their holders to exclusively use and exploit their inventions, designs, trademarks and other intangible assets, thus preventing third parties from using them without their consent. More broadly, intellectual property refers to a class of rights that protect those who create inventions. Thanks to this mechanism, they will be able to develop their activity in the market with greater security vis-à-vis competitors and will have sufficient protection vis-à-vis third parties.
In practice, the intellectual property system grants its holders exclusive rights in the form of privileges – such as a monopoly of exploitation– and duties. Seen in this way, the creator of a product can market and sell it with certain legal guarantees vis-à-vis third parties. In return, the invention is placed in the public domain, whereby the owner assumes certain obligations, such as paying fees for the maintenance of the right.
In particular, this is important in areas such as investment in R&D&I by various companies, the main objective of which is to achieve results that submit competitive advantages. The latter may be tangible through new products, services or processes or the improvement of existing ones. Such a competitive advantage is more effective if competitors do not have access to its results or to the knowledge linked to it. Or, if they do have access, they have precise limits to their use or application.
Exploitation and concessions of the invention
Based on the above, a patent holder may, for example, choose to exploit the results of his invention directly. He may also choose to assign or grant a licence for commercial exploitation to a third party. For these purposes, there are two legal figures:
- Licensing. In short, the holder of a patent may license the rights to exploit his creation to a third party. In exchange, he will receive a consideration from the latter.
- Assignment. On the other hand, an assignment consists of the sale and transfer of ownership of an invention by its creator (assignor) to a third party (assignee).
The difference between the two options is that a licence only grants the intellectual property right, whereas an assignment involves a change of ownership of the invention.
However, there are other ways of exploiting the ownership of industrial creations. For example: direct commercialisation, strategic alliances or through the creation of innovative companies with a strategic base (EIBT) or companies promoted by other organisations or institutions (spin-offs).
What does intellectual property protect?
Intellectual property provides protection for a wide range of intangible assets related to innovation and creativity in the industrial and commercial sphere. To be precise, the main assets that can be protected under this figure are:
Intellectual property patents
Patents protect new and useful technical inventions. These inventions can be products, processes or technical improvements in any field of technology. They grant the holders the exclusive right to use and market the invention for a specified period, usually 20 years (Article 58 of the Patent Law [LP]). It also prevents others from using, manufacturing, selling or importing the invention without their consent.
Utility models
In this case, we are talking about smaller technical inventions that do not meet the requirements of novelty and inventive step required for a patent. Utility models protect technical solutions that improve the functionality or efficiency of an object. These rights also grant holders the exclusive right to exploit the invention for a certain period, usually 10 years (Article 148 PL).
Industrial designs
Industrial designs protect the ornamental appearance of a product. These rights cover visual and aesthetic features, such as the shape, configuration, colours and patterns applied to a product. Or as the explanatory memorandum of the Law on the Legal Protection of Industrial Design (LPJDI) defines it: ‘the projected form for objects of use to be mass-produced’. Consequently, industrial design protection allows owners to exclude others from using, manufacturing, selling or importing products that file similar features without their consent (Article 45 LPJDI).
Semiconductor topographies
This asset class consists of the layout diagram of the various layers and elements included in an integrated circuit. In essence, we are talking about its three-dimensional layout and interconnections. Its registration is regulated by Law 11/1988 of 3 May 1988 on the Legal Protection of Topographies of Semiconductor Products.
Trademarks and trade names
Trademarks protect distinctive trademarks used to identify and distinguish goods or services in the marketplace. These trademarks can be words, logos, names, colour combinations or even sounds and smells. By registering a trademark, its owners acquire the exclusive right to use and protect it, preventing others from using similar signs that may cause confusion among consumers. The registration of trade names or denominations used to identify a company or business in the market has the same objective.
How are intellectual property rights granted?
Finally, intellectual property rights are granted through a registration process at the Spanish Patent and Trademark Office (SPTO) in Spain. Below is a summary of the main steps involved in the registration process:
Application
The interested party must file an application with the SPTO, specifying the details and characteristics of the invention, design, trademark or trade name to be protected. The application must comply with the formal requirements and pay the corresponding fees. It can be made online, at the SPTO’s electronic headquarters , or in person at the Office of this entity, or at:
- The registers of any administrative body of the General State Administration.
- Regional Intellectual Property Information Centres in the different Autonomous Communities.
- Post Offices.
- Even at Spanish diplomatic representations or consular offices abroad.
Ex officio review
Once the application has been filed, the SPTO carries out an ex officio examination to verify whether the invention is not excluded from patentability by application of articles 4.4 and 5 of the SPA. As well as ‘(…) whether the requirements relating to the representation and the priority claim, where applicable (…) are fulfilled’ [Article 35 SPA].
State of the art report
The SPTO will issue a prior art report and a preliminary, non-binding written opinion relating to the patent application.
Publication and competitions
After the application is found to comply with the legal requirements, it is published in the Official Industrial Property Gazette to allow third parties to oppose the grant of the rights applied for. If no oppositions are filed, the process continues.
Grant
Once the examination process has been completed and any possible oppositions have been resolved, the SPTO grants the intellectual property right to the holder. This will be valid in Spain. In order for it to be recognised throughout the European Union, the procedure is different. Finally, the grant involves the issuance of the corresponding patent, utility model or design register that confirms the legal protection of the intangible asset.
At ISERN we are specialists in the protection of intellectual property.
To register the patent of an invention or product, or a utility model or an industrial design, it is advisable to have legal advice. At ISERN, we provide you with the most reliable support, because we have almost 100 years of experience in the field of trademark and patent protection. We are the specialised agency with the largest national presence, with offices in the 12 most important cities in Spain. Our team includes more than 150 professionals, including lawyers, engineers and intellectual property agents. We are leaders in the sector, with more than 40,000 clients and more than 350,000 cases handled. Contact us!