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El Article 33.3 of the Patent Law
leaves room for doubts: if the preparation of the report on the status of
the technique within fifteen months following the date of presentation of
the patent application, it will be considered withdrawn.
However, in a ruling that breaks the mold, The Superior Court of Justice of Madrid has ordered the
Spanish Patent and Trademark Office to resume the procedure for granting
a patent that protects an innovative test to detect the presence of certain
viruses in the body. The applicant argued that the Article 76.3 of the law
30/92 of the common administrative procedure prevails because it is a
subsequent rule applicable to any request made to the
Administration. Law 30/92 treats citizens in a more benevolent way than
the Patent Law, since it allows you to rectify the fault even if the deadline for
do it has passed. This rectification can be done at any
moment, before or within the day on which the Administration notifies the
passage of the term. In the case of the request for the report on the status of
the technique, that day will be the day of publication of the withdrawal of the application in
the Official Bulletin of Industrial Property. The applicant can request the
report and pay the fee that same day.
Spanish Patent and Trademark Office to resume the procedure for granting
a patent that protects an innovative test to detect the presence of certain
viruses in the body. The applicant argued that the Article 76.3 of the law
30/92 of the common administrative procedure prevails because it is a
subsequent rule applicable to any request made to the
Administration. Law 30/92 treats citizens in a more benevolent way than
the Patent Law, since it allows you to rectify the fault even if the deadline for
do it has passed. This rectification can be done at any
moment, before or within the day on which the Administration notifies the
passage of the term. In the case of the request for the report on the status of
the technique, that day will be the day of publication of the withdrawal of the application in
the Official Bulletin of Industrial Property. The applicant can request the
report and pay the fee that same day.
La ruling no. 77/2014 of twenty nine
of January 458 in appeal No. 2011/XNUMX thus breaks with the practice
usual of the Spanish Patent and Trademark Office. Its implications are
enormous since the same reasoning is applicable to all cases in which
the applicant or owner of a patent, trademark or industrial design
fail to comply with a procedure such as, for example, paying the annual fee.
of January 458 in appeal No. 2011/XNUMX thus breaks with the practice
usual of the Spanish Patent and Trademark Office. Its implications are
enormous since the same reasoning is applicable to all cases in which
the applicant or owner of a patent, trademark or industrial design
fail to comply with a procedure such as, for example, paying the annual fee.
Author Colm Ahern
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