Are you developing an innovative idea or an invention with the aim of bringing it to market? If so, it is essential to protect your intellectual and industrial property rights by obtaining a patent. Patenting an invention in Spain is not as complex as you might think. In this post, we will go through the process, including the necessary requirements and the steps to follow.
A patent grants you, as the owner, the exclusive right to exploit your invention, preventing third parties from manufacturing it or using it for commercial purposes without authorisation.
Basic elements for patenting an invention in Spain
In essence, a patent is the title granted by a State to the applicant of an invention, granting an exclusive right of industrial and commercial exploitation over that invention. Generally, the period of protection is 20 years.
Patents form part of intellectual property, as do utility models, trademarks and designs. In Spain, these assets are regulated by Law 24/2015, of 24 July, on Patents (LPE). According to Article 4 of this legal instrument, inventions that are new, involve an inventive step and are capable of industrial application are patentable in all fields of technology. Specifically, the fundamental requirements are:
- Novelty. In order to patent an invention in Spain, it must be new. In other words, it cannot form part of everything that has been made accessible to the public in our country or abroad up to the date of the patent application. For this purpose, a State of the Art Report is drawn up to see similar or identical inventions already disclosed anywhere in the world.
- Inventive step. This means that the invention should not be obvious to an expert in the corresponding field.
- Industrial application. The invention should be capable of being manufactured or used industrially.
What can be patented?
Specifically, patentable inventions can belong to different technical areas, some of which are detailed below:
- Life sciences. This area ranges from new pharmacological compounds to medical devices. However, diagnostic methods or surgical or therapeutic treatment carried out on the human or animal body cannot be patented.
- Electricity and electronics. This includes inventions such as electronic components, electromagnetic measuring devices, semiconductors, refrigeration systems, thermoelectric systems and even nuclear radiation detectors.
- Energy and the environment. In this particular area, we are talking about inventions related to fossil energy sources (improved systems for the transport of hydrocarbons, for example), as well as innovations in renewable energies, such as photovoltaic panels with a higher percentage of efficiency or new catalysts for fuel cells.
- Civil engineering. In this area, innovations are usually aimed at improving products or processes to reduce operating costs and improve safety. Or, they seek to increase energy efficiency or ensure sustainable processes.
- Chemistry, materials engineering and nanotechnology. Specifically, to patent an invention in Spain within this speciality, it must be related to advanced composite materials, biomaterials, graphene and nanomaterials. Catalysts, methods and devices for extracting and processing hydrocarbons can also be patented, as well as procedures for developing industrial chemical products.
- Food technology. In this case, it is possible to protect innovative processes for the production of food and beverages, advanced preservation methods, healthy food products and improved flavours. Furthermore, we can include the procedures for the packing and packaging of these products.
What CANNOT be patented?
It is also important to understand what is not considered an invention and therefore cannot be patented. This is important to avoid unnecessary effort and expense:
- Discoveries, scientific theories and mathematical methods. These categories are not considered inventions as they are not practical applications. They are theoretical knowledge or methodologies that cannot be exploited commercially in a direct way.
- Literary, artistic or scientific works. Aesthetic creations, whether literary, artistic or scientific, cannot be patented. Instead, they are protected by copyright.
- Plans, rules and methods for intellectual activities, games or economic-commercial activities.
- Ways of filing information. Merely informative methods cannot be considered patentable inventions.
What else CANNOT be patented?
Of course, the purpose of patenting an invention in Spain and in any country should be to submit something positive to society. In this sense, some inventions are explicitly excluded from patentability for ethical or technical reasons:
- Inventions contrary to public order or morality, such as human cloning.
- Plant and animal varieties.
- Methods for the surgical or therapeutic treatment of the human or animal body and diagnostic methods applied to the human or animal body.
- Biological processes for the production of plants or animals.
- The human body and its elements at different stages of development.
How to patent an invention in Spain?
The process for patenting an invention in Spain is carried out through the Spanish Patent and Trademark Office (OEPM). Here we explain the key steps:
Initial steps
Analysis of the state of the art. Before filing a patent application, it is essential to analyse the novelty and inventive step of what you intend to register. This involves searching for existing documents that relate to your idea. The search can be carried out in public or private databases, such as those offered by the SPTO.
Applying for and processing a patent. The next step is to formally apply for the patent. This is done through the OEPM and requires the payment of official fees. The application must include:
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- A detailed description of the invention: clearly explaining how it works and what its purpose is.
- Claims: defining the specific technical characteristics of the invention and the scope of the protection requested.
- Illustrations: If necessary, to complement the description and the claims.
- Summary of the invention: Accompanied, if applicable, by a representative figure.
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State of the art report, publication of the application and substantive examination
- The State of the Art Report (SoAR) is prepared by an examiner from the SPTO, who carries out an exhaustive search of documents and references relevant to the state of the art. Specifically, this report includes an initial assessment of the patentability of the invention, considering its novelty and inventive step in relation to the documents found.
- The patent application is published 18 months after the filing or priority date. This publication makes it accessible to third parties through public databases. This allows the application to be considered as part of the state of the art for future patent applications by other inventors or companies. Once published, a period of 3 months is opened in which the applicant must decide whether to continue with the patent process. If the decision is to proceed, a request for substantive examination, a detailed evaluation of the application, must be made.
- The substantive examination is carried out by a team of three SPTO examiners. In this phase, it is determined whether the application fulfils all the requirements for the grant of the patent. This process may result in the need to modify fundamental parts of the original application.
Granting of the patent and opposition, final steps for patenting an invention in Spain
Finally, if the substantive examination is positive, the SPTO examiners will decide to grant the patent. Consequently, this decision is published in the Official Intellectual Property Gazette, formalising the granting of the patent and granting exclusive exploitation rights to the patent holder.
However, although the granting of a patent confers exclusive rights, it is not an absolute guarantee. After the publication of the Grant, anyone has a period of 6 months to file an opposition to the patent. This opposition involves a formal request for the SPTO to re-evaluate the patent based on the opponent’s arguments. The opposition is the last opportunity to challenge a patent before the SPTO. If no opposition is filed after the deadline, the patent can only be challenged by filing a lawsuit in court.
ISERN guides you through the process of patenting an invention in Spain
With 100 years’ experience in registering and protecting patents, trademarks and intellectual and industrial property in Spain and throughout Europe, ISERN Patentes y Marcas is a leader in the sector.
Our specialised professionals offer you advice and legal support at every stage of the patent process, whether for personal or business inventions. Once your patents have been granted, we monitor any misuse and defend your rights firmly and effectively. To patent an invention in Spain, please contact us; we have 12 offices located in the main cities of Spain to be close to you throughout the process.