Lawsuits in the new Patent Law, a rare bird in the Spanish judicial landscape (IV)

Since the patent law reform that brought with it
la Law of 1986 the lawsuits in this matter, due to the accumulation of specialties which
behave, have always been different. When the new comes into effect 24 / 2015, the judicial procedure in this area may be considered, without
fall into exaggeration, like a rara avis within the Spanish judicial system.
The singularities are so many and so profound. that are introduced, that any
Similarity with other judicial processes will be the result of mere coincidence.

First of all, it is still curious that as of April 1
of 2017, industrial property lawsuits, with the exception of those that
based on community brands or designs, can undertake a movement
migratory towards Barcelona. For the new Law, judicial jurisdiction is
linked to the Commercial Courts of the city where the Superior Court is located
of Justice, but only of those Autonomous Communities in which the Council
General of the Judiciary has designated Courts team in matters of
patents. And although the Commercial Courts of Madrid have already fallen into
account and are on the path to that designation, so far only
Barcelona has these bodies with exclusive powers in matters of
patents. It is not unlikely that the good image garnered by experience
Catalan towards hyper-specialization could have influenced this decision
normative. But the change is not trivial.

Secondly, industrial property lawsuits are
to arouse quite a bit of envy within the legal profession, if we think of a
anecdotal detail but of enormous practical significance: the deadline for
respond to the complaint in any civil action regulated in the 24 / 2015,
difference from the 20 days available to a lawyer in any other matter,
It will be two (2) months. The technical aspect underlying the object of the
controversy and the need to resolve strategic issues relating to the
challenge of the title are circumstances that justify this significant - and
until a certain point elitist– extension of the deadline.

But there is a third detail that distance sensibly the
process in patent law of any other known. I mean the
creation of a precautionary instrument compared to the precautionary measures themselves. The
Law will make it possible for those people who plan to file a
request for precautionary measures without a prior hearing against them, may
submit to the competent body a “preventive document” to provide
to the court arguments against such a request. This possibility, so
strange to the Spanish procedural tradition, it is not known if it will act as curb
or as a piston of precautionary measures processes. Because the way that
is conceived can generate conflicts where there were none or can in
I change putting out fires before the flame catches fire. But we are
new in the face of its own and exclusive provisions that have no parallel in any
another field of the legal system.

This unique configuration of the lawsuit regarding
patents becomes more important if we remember that Provisions
procedural provisions of Law 24/2015 are also applicable to trademarks and
designs. And one might wonder to what extent some actions in copyright law
brands – expiration due to lack of use, without going any further – are deserving of that
such an exceptional procedural regime that is granted to patents with the 24 / 2015 in spheres such as those that have been indicated. And they are not, as we will see in
next chapters, the only new features that allow the cataloging of this
type of judicial processes such as rara avis.

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