Do you have an innovative idea and want to protect it legally? This guide explains everything you need to know about patents, both in Spain and internationally: what can be patented, the steps involved in filing a patent application, the differences between patents and other forms of protection such as utility models and trade secrets, and much more.
What is a patent, and what is it used for?
A patent is a technical and legal registration that grants the exclusive right to an invention within a jurisdiction. It allows the patent holder to prevent third parties from manufacturing, using, or selling the invention without authorization for a limited period of 20 years.
A patent provides protection for technical solutions to specific problems: new products, processes, devices, or uses.
It is a key legal instrument for promoting innovation and protecting investment in technological development.
Where can an invention be patented?
It depends on the geographic area for which protection is sought.
A patent is a right granted in a specific jurisdiction, with either national (Spain, France, the United States, China, etc.) or regional (Europe) registries.
What can and cannot be patented in Spain?
For an invention to be patentable, it must meet three fundamental requirements:
- Novelty: that it has not been previously disclosed in the prior art.
- Inventive step: degree of obviousness to a person skilled in the art.
- Industrial application: something that can potentially be manufactured or used in an industry.
The following are not considered inventions and, therefore, cannot be protected by a patent:
- Abstract ideas without technical elaboration.
- Discoveries, scientific theories, and mathematical algorithms in and of themselves.
- Plans, rules, and methods for games or economic and commercial activities
- Computer programs “as such.”
In addition, there are exceptions to patentability, such as:
- Inventions that violate Spain's moral or legal principles.
- Plant varieties or animal breeds
- Medical or surgical treatment methods.
How do you patent an idea in Spain?
As previously noted, an abstract idea does not constitute an invention. What is patented is a specific invention—that is, a technical embodiment of the idea.
If you haven't yet developed your invention but want to protect confidential information, you can rely on a trade secret.
Once a specific invention has been defined, the process of filing a patent application with the OEPM can begin.
How to Patent an Invention Step by Step in Spain?
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Determine the patentability of the invention
Before beginning the process, it is advisable to verify whether your invention is patentable (based on the requirements of novelty, inventive step, and industrial applicability) and to conduct a prior art search to determine whether your invention has already been disclosed or protected by third parties.
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Prepare the technical documentation
A description of the invention must be prepared, in which the invention to be protected is disclosed and claimed.
The technical and legal drafting of a patent is essential for the proper processing and protection of the invention. We recommend working with an intellectual property attorney to avoid errors that could limit the scope of protection.
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Submit the application
The application must be filed with the OEPM along with proof of payment of the corresponding fee.
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Ex Officio Examination and Issuance of the Prior Art Report (IET)
After verifying that the documentation is in order (ex officio review) and upon payment of the applicable fee, the official office will prepare the Report on the State of the Art (IET).
This report analyzes whether there are any similar inventions and provides a preliminary written opinion on the requirements of novelty, inventive step, and industrial applicability, including any technical or formal objections that must be addressed if you wish to proceed.
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Official Publication of the Application
Eighteen months after the filing date, your application will be published in the Official Industrial Property Bulletin (BOPI) and in the European Documentation Center (CEO) database.
From that moment on:
- You have 3 months to apply for the Substantive Exam and pay the fee.
- The information is made public.
- Any third party may file comments regarding the patentability of your invention.
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Substantive Review
After the applicable fee has been paid, the OEPM conducts a thorough analysis of the technical and legal aspects of the application.
If any objections are identified, you have 2 months from the publication of the substantive examination in the BOPI to address them. Generally, there may be between 1 and 3 exchanges with the Office during the substantive examination until the application is finalized.
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Patent Decision and Grant
If everything is in order, the OEPM will issue a grant decision, and your patent will be registered.
After the patent is granted, there is a 6-month period during which third parties may file an opposition if they believe the patent does not meet the legal requirements. If there is no opposition (or if it is dismissed), the patent becomes fully yours, with a term of 20 years, renewable upon payment of an annual fee.
What if I want to protect my patent in Europe or worldwide?
If you are interested in obtaining protection outside of Spain, unfortunately there is no such thing as a global patent that protects an invention in every country; rather, you must seek protection individually in each country of interest, where the procedures and requirements vary substantially from country to country.
If you are seeking protection in several European countries, you can file a patent application with the European Patent Office (EPO). Once granted, you must validate the patent in each country where you want it to take effect (unless you choose the unitary patent system system, which would already grant you protection in the participating countries).
Alternatively, if you plan to protect your invention in several countries outside Europe, you can use the PCT (Patent Cooperation Treaty) system, administered by the WIPO. This system allows you to initiate the process in many countries with a single international application, which is subsequently processed individually in each of the territories of interest for the grant of a patent.
European patents (filed with the EPO) and international applications (filed through the PCT system) follow different procedures, each with specific technical requirements, deadlines, and fees.
In such cases, it is even more important to seek professional advice in order to determine the best protection strategy and comply with the requirements in each jurisdiction.
What is a unitary patent?
The unitary patent is a European registration that allows applicants to obtain a single patent valid in several European Union countries through a single application. This system took effect in June 2023 and is administered by the European Patent Office (EPO).
This is an interesting approach, 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 is not part of the unitary patent system; therefore, if you wish to obtain protection in Spain, you must file a separate national validation application.
What are technical validations and translations in Europe?
When a European patent is granted, a three-month period begins during which validate it in each country where protection is sought. Through this process, the European patent becomes legally valid in the relevant territories, allowing the owner to exercise their rights in those markets.
This means:
- Submit translations (full or partial) of the patent, depending on the country.
- Pay the national fees.
- In some cases, appoint a local representative.
How long does a patent last?
A patent is valid for 20 years from the date the application is filed, provided that the annual maintenance fees are paid.
It cannot be renewed or extended beyond that period, except in specific cases where an additional registration— supplementary protection certificates (SPCs)— may be requested for pharmaceutical or plant protection products.
Differences Between a Patent and a Utility Model
| Appearance | Patent | Utility Model |
| New | World Cup | World Cup |
| Technical requirement | High (inventive activity) | Lower technical requirements |
| Duration | 20 years | 10 years |
| Cost | Higher | More affordable |
| Substantive Review | Required | Not always |
What is the difference between a patent and a trade secret?
| Appearance | Patent | Trade secret |
| Disclosure | Public | Confidential |
| Duration | 20 years | Unlimited (if maintained) |
| Registration | Requires processing | No registration is required (but document protection measures are required) |
Can software be patented?
Software as such is not patentable in Spain and Europe. However, if it is part of a technical invention , it can be protected by a patent.
Frequently Asked Questions About Patents
Can I patent an idea without developing it?
No. Ideas must be embodied in a technical form to be patentable. However, the technical embodiment does not need to be fully developed, and a patent may be applied for even if the invention is still in its early stages.
What happens 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 registration.
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 the complexity of the case.
Does a patent protect me worldwide?
No. Patents are territorial; there are national patents (Spain, the United States, China, etc.) and regional patents (Europe).
How long does a patent last?
20 years, provided that the annual maintenance fees are paid.
At Elzaburu, we advise inventors, startups, universities, and large companies throughout the entire process of patent protection, enforcement, and strategic management, both nationally and internationally.
David Hidalgo, Junior Associate in the Patent Practice at Elzaburu.