Inventions can be protected by a patent in all fields of technology, including those involving biological material, provided they are new, involve inventive activity, and are susceptible to industrial application.
Industrial inventions protect a technical rule, unlike Industrial Design, which is a creation of form or aesthetics.
Not considered patentable:
- Procedures for cloning human beings.
- Procedures for modifying the human germline genetic identity.
- Uses of human embryos for industrial or commercial purposes.
- Procedures for modifying the genetic identity of animals that cause suffering with no substantial medical or veterinary benefit to humans or animals, and the animals resulting from such procedures.
Requirements.
- An invention is novel when it is not comprised in the state of the art worldwide.
- An invention involves inventive activity if it is not evident to a person skilled in the art from the state of the art worldwide.
- An invention is industrially applicable when its subject matter can be manufactured or used in any kind of industry, including agriculture.
The scope of the protection conferred by the patent is determined by the claims in the title. The description and drawings are only used to interpret the claims.
The patent holder is required to exploit it either by themselves or through an authorized third party. Failure to do so may result in the patent being declared void.
Patents may be subject to voluntary or compulsory licensing, among other reasons: due to lack of exploitation, for public interest reasons, or for the manufacture of pharmaceutical products for countries with public health issues.
Registration.
The right to register a patent belongs to the inventor(s).
A company can apply for patent registration but must include the name(s) of the inventor(s).
Work-related inventions are registered in the name of the company.
Patent protection is always territorial: Spanish Patent, European Patent [25 EU countries], or other countries worldwide [directly or via EP or PCT].
The duration of patent registration is twenty years, non-extendable.
Patent registration is subject to the general registration principles of (i) publicity, (ii) opposition by third parties, (iii) examination and registration closure, and (iv) successive procedure in the transfer.
The registration procedure includes an examination of novelty and inventive activity.
As part of the granting examination, a Technical Report is prepared, containing all necessary documentation obtained from previous records or technical publications worldwide to assess the novelty and inventive activity of the invention.
Absolute nullity of the registration is provided for in certain cases.
To obtain patent registration with effect in Spain and to extend its protection worldwide, three routes can be used: (i) by applying to the Spanish Patent and Trademark Office [OEPM], (ii) via the European Patent [EP], (iii) via the Patent Cooperation Treaty [PCT].
Effects of Registration.
The patent registration entitles its holder to prevent unauthorized use of the invention by third parties and, in particular:
- The manufacture, offer, commercialization, use of a patented product, and its importation.
- The use of a patented process.
- The offer, commercialization, or use of a product obtained by the patented process or its importation.
Legal Framework.
- Spain: Law 24/2015, of July 24, on Patents.
- Unitary Patent: EU Regulations No. 1527/2012 and No. 1260/2012. Spain is not a part of it. Currently, the following European Union member states participate: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, and Sweden.
- Patent Cooperation Treaty (PCT) established in Washington on June 19, 1970. It allows for seeking protection for an invention in each of the member states of the International Treaty (157) through a single application known as an international application. It is a filing system, not a grant system; patents are examined and granted by each designated country or as a Unitary Patent.
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