Judgment of the Court of Justice of 17 October 2024, Sony (C-159/23). Facts The litigation pits Sony Computer Entertainment Europe Ltd (“Sony”), distributor of the PlayStation Portable (PSP) console and its games, against Datel Design and Development Ltd (“Datel”), manufacturer of accessories and complementary programs such as Action Replay PSP and Tilt FX. Datel's programs ran alongside Sony's and allowed altering variables temporarily stored in the console's memory, activating unforeseen functions such as removing speed limitations in the game "MotorStorm: Arctic Edge". Sony argued that these modifications constituted an unauthorized “transformation” of its programs, within the meaning of Article 4.1.b) of Directive 2009/24/EC, infringing its exclusive right of transformation. The Bundesgerichtshof (German Federal Supreme Court for Civil and Criminal Matters) referred two preliminary questions to the CJEU: (i) whether the content of the variables modified during the execution of the program is protected by copyright and (ii) whether such alteration can be considered a transformation within the meaning of the Directive. Rulings The CJEU delimits the scope of legal protection for computer programs in accordance with Articles 1 and 4 of Directive 2009/24/EC, specifying that only the forms of expression of the program are protected. Remember that article 1.2 excludes from protection ideas, principles and methods of operation. Therefore, copyright protects the source code and the object code, but not the functional elements or the execution data. The CJ cites the WIPO Treaty and the TRIPS Agreement, which also limit protection to expressions, not to ideas or technical processes. In this context, the CJEU considers that the content of variables temporarily stored in memory does not form part of the expression form of the computer program. Such variables are transient states that do not reproduce or transform the protected code. The CJEU also emphasizes that the purpose of the Directive is to protect the intellectual creation of the program, but without granting monopolies over its operation, so as not to hinder competition or technical progress. Consequently, the CJE concludes that the modification of variables during execution does not constitute a transformation of the program nor infringe copyright, provided that such modifications do not allow the program to be reproduced or performed again. Commentary The CJEU ruling clarifies a key aspect of EU law: copyright on software protects the code as a creative expression, but not the functional behavior of the program during its use. The ruling follows the line of previous decisions such as SAS Institute (C-406/10) and Bezpečnostní softwarová asociace (C-393/09), which already limited protection to the literal expression of the code. With this, the CJEU reaffirms the distinction between protected expression and free functionality, the basis of the balance between intellectual property and innovation. From a practical point of view, the ruling has two main effects. First, it forces development companies to strengthen their technological protection measures or license agreements, since copyright does not cover functional modifications in the execution of the software. Second, it offers legal security to developers of auxiliary programs, provided they do not modify the code of the protected program. In short, this ruling consolidates a uniform criterion in the EU: Only forms of expression - source code and object code - are protected by copyright, while execution states and dynamic variables remain outside the protected scope. Ana Sanz, Associate Partner in the Legal area.

Judgment of the Court of Justice of 6 March 2025, Orchestre national de Belgique (C-575/23). 1. Key facts of the case The case arose from a dispute between several musicians of the Orchestre National de Belgique and the Belgian State, following the adoption of a Royal Decree of 1 June 2021 regulating the related rights of performers employed under administrative status. That decree imposed the automatic transfer of those rights to the employer, without prior consent. The performers challenged the regulation before the Belgian Conseil d'État, alleging its incompatibility with EU law, in particular Directives 2001/29/EC, 2006/115/EC and (EU) 2019/790 on copyright and related rights. 2. The Court's findings The CJEU addressed three main issues. First, the Court of Justice (CJEU) analyzes whether Directive (EU) 2019/790 applies to the case, even though the Royal Decree was adopted before the transposition deadline. The CJEU considers that the Directive does apply to assignments of rights that take effect after June 7, 2021, as they refer to acts not yet completed. Second, the CJEU interprets the concept of "performer" broadly, concluding that it also includes musicians employed under administrative contracts. Thus, such performers enjoy the same rights as performers under ordinary employment contracts. Finally, the CJEU declares that Directives 2001/29 and 2006/115 preclude national legislation that imposes, by regulation, the assignment of performers' rights without their prior consent. Consent is the core of the exclusive right, and its elimination would render the protection recognized by EU law meaningless. Commentary on the Judgment: The CJEU judgment strengthens the protection of performers against public authorities by confirming that their prior consent is essential for the transfer of related rights. The CJEU emphasizes that this requirement is an essential part of the European intellectual property system and that national laws cannot override it through general provisions. The ruling is particularly relevant for public cultural institutions, which will have to adapt their regulations to respect artists' consent. Furthermore, it clarifies the temporary application of Directive 2019/790 and consolidates the uniform interpretation of related rights in the EU, strengthening the artist's position vis-à-vis public authorities. Ana Sanz, Associate Partner, Legal Department. 

Supreme Court Judgment of 24 April 2025, Teva (ECLI:ES:TS:2025:1714) 1. Facts The litigation pits the pharmaceutical company Teva against the holder of a European patent relating to a compound intended for the treatment of inflammatory diseases. Teva requested the partial invalidation of the patent alleging a lack of inventive step, considering that the claimed technical effect was not plausible in light of the information contained in the initial application. The defendant argued that the plausibility of the effect stemmed from the expert's general knowledge and subsequent studies that confirmed the compound's effectiveness. After a procedural journey through the lower and appeal courts, the case reached the Supreme Court, which had to determine whether the plausibility of the intended technical effect constitutes a requirement to assess inventive activity within the framework of the Patent Law (PL) and the European Patent Convention (EPC). 2. Rulings The Supreme Court starts from the principle that inventive activity must be assessed in accordance with Article 56 of the EPC and the consolidated doctrine of the European Patent Office (EPO). It emphasizes that the invention must offer a technical solution to an objective technical problem, and that the claimed contribution must be credible at the time of the application. The Court adopts the notion of “plausibility of the technical effect”, developed by the EPO jurisprudence, according to which a mere statement of the technical effect is not enough: it is necessary that, based on the request and the general knowledge of the expert in the matter, the effect is plausible or reasonably supported. If the effect is not plausible at that time, the invention lacks inventive step. The Supreme Court clarifies that plausibility does not constitute a new autonomous patentability requirement, but rather a methodological criterion for assessing inventive activity. It rejects the use of subsequent evidence or data to remedy the initial lack of plausibility, as this would alter the balance of the patent system and unduly expand the content of the original application. Applying this doctrine to the case, the Supreme Court concludes that the contested patent did not provide sufficient data to make the alleged anti-inflammatory effect credible. The description did not contain experimental examples or concrete references that would allow the expert to consider the compound's mechanism of action plausible. Consequently, it confirms the partial invalidity of the patent due to lack of inventive activity. 3. Commentary: The Supreme Court ruling consolidates in Spain the European doctrine on the plausibility of the technical effect as an essential element for assessing inventive activity. The Court adopts the jurisprudence of the EPO and the CJEU, establishing that the applicant must provide, from the time of filing, a sufficient technical basis that makes the effectiveness of the invention credible. This prevents the granting of speculative patents or patents based on mere hypotheses. In practice, this forces companies to justify their inventions more rigorously, incorporating data or references that support the plausibility of the alleged effect. Ana Sanz, Associate Partner in the Legal area.

Madrid, November 13, 2025 – ELZABURU, a firm specializing in industrial and intellectual property, has achieved excellent results in the Best Lawyers in Spain awards, a professional recognition based on the consensus opinion of leading lawyers regarding the professional capabilities of their colleagues within the same geographic area and legal practice. With 35 lawyers and technical experts referenced and a total of 43 mentions, ELZABURU consolidates its position as the industrial and intellectual property firm with the most recognized professionals in this edition, thus reinforcing its leading position in the Spanish market. Regarding the individuals referenced in this year's edition, these are the ELZABURU professionals who appear in the ranking: Intellectual Property Law: Colm Ahern, Agustín Alguacil, Mónica Amores, Enrique Armijo, Cristina Arroyo, Luis Baz, Luis Beneyto, Catherine Bonzom, Ignacio Diez de Rivera Elzaburu, Alfonso Diez de Rivera Elzaburu, Cristina Espín, Mercedes García, Irene Gascón, Fernando Ilardia, Mabel Klimt, Xavier Lamíquiz, Miguel Ángel Medina, Carlos Morán, Tránsito Ruiz, Francisco J. Sáez, José Ignacio San Martín, Ruth Sánchez, Ana Sanz, Pedro Saturio, Rosa Torrecillas, Cristina Velasco and Manolo Mínguez. Litigation: Enrique Armijo, Alba Mª López, and Carlos Morán; Information Technology: Ruth Benito; Privacy & Data Protection: Ruth Benito; Technology Law: Ruth Benito; Communications Law: Mabel Klimt; Entertainment Law: Mabel Klimt; Competition: Carlos Morán. Regarding the Ones to Watch distinction, which recognizes lawyers in the early stages of their careers who have already demonstrated outstanding excellence in their legal practice, the recipients were: María Cadarso and Alberto Gallo in Litigation; and Inés de Casas, Sara Navarro, Paloma Querol, and, again, Alberto Gallo, in Intellectual Property. Best Lawyers employs a sophisticated, thorough, rational, and transparent survey process designed to obtain meaningful and substantive assessments of the quality of legal services. According to this organization, “the quality of a peer-review survey is directly related to the quality of the voters.”

Following the recent anniversary of the EU Trademark and Designs Court, in our first instalment we explore how Alicante was chosen as the seat of this court. In this second installment, we will analyze the multiple transformations that the Court has experienced in its 20 years of existence. How it has evolved both in its structure and its jurisdiction and how it has become established as a benchmark in the protection of industrial property rights in Europe. Changes in the name and structure of the Court: a continuous evolution Over these twenty years, the Alicante Court specialising in trademarks and designs has undergone a constant evolution, manifested on three fundamental levels. First of all, it has changed its name several times. Initially known as the Community Trade Mark Court, it was later renamed the European Union Trade Mark and Design Court, and more recently the expression European Union Trade Mark Court of First Instance has come into use. These are not simple cosmetic changes; the latter name suggests a collegial action by the courts with jurisdiction in the matter, similar to the Patent Court of First Instance of Barcelona. The expansion of the Court: creation of new specialized bodies Another significant evolutionary aspect is the expansion of the jurisdictional body. Initially, only Commercial Court No. 1 of Alicante was responsible for disputes over trademarks and designs in the European Union, but Commercial Court No. 2 was soon added to these functions, and more recently, Commercial Court No. 4, which was newly created and also in Alicante. Only Court No. 3, located in Elche, has been left out of this specialized jurisdiction. This proliferation of courts may require a certain amount of collegial or coordinated action to avoid a lack of homogeneity, both procedural and substantive, despite how unusual this may seem in the judicial organization at first instance. Expansion of powers: new frontiers in the Jurisdiction The jurisdictional sphere has been the third level in which the Court has shown a notable evolution. Since its inception, one of the most relevant debates in litigation practice has been the scope of the jurisdiction of the European Union Trademark and Design Court. Originally limited to actions for infringement of European Union trademarks or designs, this restrictive approach was soon replaced by the application of the procedural principle of vis attractiveness. This allowed the Court to admit actions for the nullity of company names, infringement of national trademarks combined with other European Union trademarks, and actions regarding copyright linked to European Union trademarks. This interpretation was later supported by the legislator, converting what were initially jurisprudential criteria into normative criteria. An example of this is the recent Organic Law 7/2022, which reformed article 86 quinquies of the LOPJ. This development has allowed the court to concentrate on what is truly essential: building a solid judicial doctrine. In our next installment we will delve deeper into the achievements made thanks to this specialization. Ana Sanz, Associate Partner in the Litigation Area of ​​ELZABURU

It contains 13 rulings by the CJEU and the Spanish courts, presented under three headings: Facts, Statements and Commentary. They are analysed by the firm's professionals and deal with trademarks, copyrights, patents, designs, piracy and plant varieties. Madrid, 28 May 2024. - ELZABURU, a firm specialising in the management of intangibles, has published the 12th edition of its European jurisprudence yearbook, which contains 13 relevant cases decided by the Court of Justice and the Spanish courts, commented on by the firm's specialists in each area. This compilation contains commented rulings on trademarks (4), copyrights (3), patents (2), designs (2), piracy (1) and plant varieties (1). Over these 12 years, the Yearbook has published a total of 337 cases from the Court of Justice of the European Union, the EU Trademark Court, the Supreme Court of the Provincial Courts, other European and Spanish courts, and the European Patent Office. This year's compilation has selected relevant cases from the Court of Justice in its interpretation of European regulations in the most varied scenarios; as well as the work of the Spanish courts, which have been joined this year, for the first time, by the civil courts to settle appeals against the resolutions of the OEPM. In this edition, 9 professionals from the firm have published their comments: Enrique Armijo, María Cadarso, Inés de Casas, Juan José Caselles, Mabel Klimt, Carlos Morán, Alessandro Pelliccioni, Pedro Saturio and Ana Sanz. The Editorial Committee of the Yearbook has been formed by Ana Donate, Margarita García, Carlos Morán, Elisa Prieto, José Ignacio San Martín and Bosco de la Vega.

Commentary on case C-689/15 on the use of a trademark as a guarantee seal. Published by Elzaburu English version «Revocation of an individual trademark used as a label of quality. Judgment of the Court of Justice of 8 June 2017, Gözze (C-689/15)» Text accessible at: https://www.elzaburu.com/es/area-de-documentacion/anuario-elzaburu Also accessible in the section Law & ICT from El Derecho: https://elderecho.com/caducad-una-marca-individual-usada-sello-garantia-sentencia-del-tribunal-justicia-8-junio-2017-gozze-c-689-15 Source: ELZABURU Yearbook of European jurisprudence on industrial and intellectual property, 2017, pp. 28-31 Author/s: Ana Sanz Cerralbo

Commentary on case C-397/16 on community designs. Published by Elzaburu English version «The 'repair' clause in Article 110 of Regulation No. 6/2002 on Community designs. Judgment of the Court of Justice of 20 December 2017, Acacia (C-397/16 and C-435/16)» Text accessible at: https://www.elzaburu.com/es/area-de-documentacion/anuario- elzaburu Source: ELZABURU Yearbook of European jurisprudence on industrial and intellectual property, 2017, pp. 75-78 Author/s: Ana Sanz Cerralbo

Commentary on Spanish ruling on the use of adwords by an EU brand. Published by Elzaburu English version «Unfair competition in the use of a European Union trademark as an adword. Judgment of the Spanish Supreme Court of 15 February 2017 » Text accessible at: https://www.elzaburu.com/es/area-de-documentacion/anuario-elzaburu Source: ELZABURU Yearbook of European jurisprudence on industrial and intellectual property, 2017 , pp. 102-104 Author/s: Ana Sanz Cerralbo