Do you have an innovative idea and want to legally protect it? This guide explains everything you need to know about patents, both in Spain and internationally: what can be patented, steps for processing an invention, differences with other protection mechanisms such as utility models or industrial secrets, and much more.
What is a patent and what is it used for?
An license It is a technical-legal registration that provides the exclusive right in a jurisdiction over an invention. It allows the owner prevent third parties from manufacturing, using or selling your invention without authorization, for a limited period of 20 years.
The patent allows protection technical solutions to specific problems: new products, procedures, devices or uses.
It is a key legal instrument for promote innovation and protect investment in technological development.
Where can an invention be patented?
Depends on geographical area in which protection is desired.
A patent is a right granted in a particular jurisdiction, with national (Spain, France, United States, China, etc.) or regional (Europe) registrations.
What can and cannot be patented in Spain?
For an invention to be patentable it must meet three fundamental requirements:
- Novelty: that has not been previously disclosed in the state of the art.
- Inventive activity: degree of evidence for an expert in the field.
- Industrial application: that can be manufactured or potentially used in some industry.
The following are not considered inventions and therefore cannot be protected by patent:
- Abstract ideas without technical development.
- Discoveries, scientific theories, mathematical algorithms themselves.
- Plans, rules and methods for economic-commercial games or activities
- Computer programs “as such”.
Additionally, there are exceptions to patentability such as:
- Those inventions that violate the moral or legal principles of Spain.
- Plant varieties or animal breeds
- Medical or surgical treatment methods.
How to patent an idea in Spain?
As previously indicated, an abstract idea does not correspond to an inventionWhat is patented is a specific invention, that is, a technical materialization of the idea.
If you have not yet developed your invention, but want to protect confidential information, you can resort to a industrial secret.
Once a specific invention can be defined, the patent application process can be initiated before the SPTO.
How to patent an invention step by step in Spain?
Verify the patentability of the invention
Before starting the process, it is advisable to verify whether your invention is patentable (under the requirements of novelty, inventive step, and industrial application) and conduct a background search to check whether your invention has already been disclosed or protected by third parties.
Prepare technical documentation
A must be drafted descriptive memory of the invention where the invention to be protected is disclosed and claimed.
The technical and legal drafting of a patent is essential for proper processing and protection of the solution. We recommend hiring an industrial property agent to avoid errors that could limit the scope of protection.
Submit the application
The application must be submitted to the OEPM along with proof of payment of the corresponding fee.
Ex officio examination and issuance of the State of the Art Report (IET)
After verifying that the documentation is in order (ex officio examination), and upon payment of the corresponding fee, the official office will prepare the State of the Art Report (SART).
This report analyses whether similar inventions exist and provides a preliminary written opinion on the requirements of novelty, inventive step and industrial application, with possible technical or formal objections that must be corrected if you wish to proceed.
Official publication of the application
At 18 months from the date of submission, your application will be published in the Official Gazette of Industrial Property (BOPI) and in the database of the European Documentation Centre (CEO).
From that moment on:
- It has 3 months to request the Substantive Exam, paying the fee.
- The information is made public.
- Any third party may submit observations on the patentability of your invention.
Substantive exam
After payment of the corresponding fee, the OEPM conducts an in-depth analysis of the technical and legal aspects of the application.
If objections are detected, a decision is made 2 months from the publication of the Substantive Examination in the BOPI (Boleto of the Spanish Official Gazette) to correct them. Generally, there may be between one and three interactions with the Office during the substantive examination until the processing is resolved.
Resolution and granting of the patent
If everything is in order, the OEPM will issue a concession resolution, and your patent will be registered.
After the grant, a period of 6 months in which third parties can object: to the patent if they consider that it does not meet the legal requirements. If there is no opposition (or it is dismissed), the patent becomes fully yours, with a duration of 20 years in the Making, renewable by paying an annual fee.
What if I want to protect my patent in Europe or worldwide?
If you are interested in obtain protection outside of SpainUnfortunately, there is no global patent that protects a solution in all countries, and individual protection is required in each of the countries of interest, where the steps and requirements vary substantially from country to country.
If you are seeking protection in several European countries, a patent application can be filed with the European Patent Office (EPO ). Once granted, it must be validate the patent in each country wherever you want it to take effect (except if you choose the system of the unitary patent which would already grant you protection in the member countries).
Alternatively, if you plan to protect your invention in several countries outside Europe, the system can be used PCT (Patent Cooperation Treaty), managed by the WIPOThis system allows the process to be started in many countries with a single international application, which is subsequently processed individually in each of the territories of interest for its concession.
European patents (to the EPO) or applications International experts (through the PCT system) follow different procedures, with specific technical requirements, deadlines and fees.
In these cases, it's even more important to seek professional advice to determine the best protection strategy and comply with the formalities in each jurisdiction.
What is a unitary patent?
La unitary patent It is a European registration that allows you to obtain a single patent valid in several countries of the European Union with a single application. This system came into force in June 2023 and is managed by the European Patent Office (EPO).
This is an interesting avenue, but the decision to apply will depend on our commercial, technological, and territorial strategy. In this article, we analyze the Advantages and disadvantages of the unitary patent, compared to the traditional patent validation system.
It is important to note that Spain Not a part of the unitary patent system, so if you want protection in Spanish territory, you must make a independent national validation.
What are technical validations and translations in Europe?
When a grant is made European patent, a three-month period is opened for validate it in each country where protection is desired. Through this process, the European patent acquires legal validity in the corresponding territories, allowing the holder to exercise their rights in those markets.
This implies:
- Introduce translations (total or partial) of the patent depending on the country.
- Pay the national rates.
- In some cases, designating a local representative.
How long does a patent last?
A patent has a duration of 20 years from the date of filing the application, provided that the annual maintenance fees are paid.
It is not possible to renew or extend it beyond that period, except in specific cases where an additional registration can be requested, supplementary protection certificates (SPCs), applicable to pharmaceutical or phytosanitary products.
Differences between patent and utility model
Appearance | Patent | Utility model |
New | World | World |
Technical requirement | High (inventive step) | Less technically demanding |
Duration | 20 years in the Making | 10 years in the Making |
Ribs | Highest | Cheaper |
Substantive exam | required | Not always |
What is the difference between a patent and a trade secret?
Appearance | Patent | |
Outreach | Public | Confidential |
Duration | 20 years in the Making | Unlimited (if maintained) |
Register | Requires processing | No registration required (but documentary protection measures are required) |
Can software be patented?
El software as such is not patentable in Spain and Europe. However, if it is part of an invention of a technical nature yes it can be protected by patent.
Frequently Asked Questions about Patents
Can I patent an idea without developing it?
No. Ideas must have a technical embodiment to be patentable. However, the degree of development of the technical embodiment does not need to be complete, and a patent can be applied for on an invention at an embryonic stage.
What if someone has already patented or disclosed something similar?
Your application may be rejected. It is highly recommended that you conduct a background check before applying for a record.
How long does the patent process take?
In Spain, the process can take between 18 and 36 months, depending on the type of exam and complexity of the case.
Does a patent protect me worldwide?
No. Patents are territorial, with national patents (Spain, United States, China, etc.) and regional patents (Europe).
How long does a patent last?
20 years in the Making, provided that the annual maintenance fees are paid.
En elzaburu, we advise inventors, startups, universities and large companies throughout the entire process of protection, defense and strategic management of patents, both nationally and internationally.
David hidalgo, Junior Associate in the area of Patents from Elzaburu.
