Industrial Property in Spain refers to the protection granted to all creations related to industry: patents and utility models, distinctive signs and designs. However, Intellectual Property is linked to the protection of the creations of the mind. In this section we talk about literary works, plays, movies, musical works, works of art, drawings, paintings, photographs and sculptures or architectural designs. In both cases, the office in charge of processing these rights is the Spanish Patent and Trademark Office.
The most commonly used rights in industrial property are patents and utility models, which protect inventions consisting of products and procedures that can be reproduced and reiterated for industrial purposes.
The only way to obtain commercial profit from the ideas and research results generated is by obtaining protection through a patent or any other industrial or intellectual property right. It must be taken into account that, to put a product on the market, a significant investment must normally be made, which would not make sense without the exclusive right provided by industrial and intellectual property rights, which greatly facilitate the recovery of that investment. The most commonly used rights in industrial property are patents and utility models, which protect inventions consisting of products and procedures that can be reproduced and reiterated for industrial purposes.
Not everything is patentable. As an example, the Patent Law indicates that they are NOT patentable:
- Discoveries, scientific theories and mathematical methods.
- Aesthetic creations.
- The plans, principles and methods for the exercise of intellectual activities, for games or for economic activities, as well as computer programs.
- Ways of presenting information.
Inventions whose commercial exploitation is contrary to public order or good customs are not patentable either, specifically they are NOT considered patentable:
- Human cloning procedures.
- The procedures for modifying the germline genetic identity of the human being.
- The use of human embryos for industrial or commercial purposes.
- Procedures for modifying the genetic identity of animals that lead to these sufferings without substantial medical or veterinary utility for man or the animal, and the animals resulting from such procedures.
- The human body, in the different stages of its constitution and development, as well as the simple discovery of one of its elements.
There is no incompatibility when it comes to patenting and publishing research results in a journal, but you have to proceed in the right order. Protect first, then publish, and finally transfer. It must be taken into account that, for a patent application to be finally granted, the research result must meet, among other things, the requirement of being novel. In this way, if its content is not new, a patent will never be granted, understanding new as not having been made public or disclosed before applying for protection before the Spanish Patent and Trademark Office. After submitting the application for protection, it becomes effective at that very moment, with the priority date being obtained, from which the content of the invention may be published without having to wait for the patent to be granted.
In accordance with the Spanish Law on Patents and Trademarks and the Andalusian Law 16/2007 of December 3, on Science and Knowledge, related to labor inventions, it is the entity (private or public company, Autonomous Organism, University, Foundation, etc.) to which the inventor(s) owns the patent ownership rights. When the invention arises as a result of collaboration between groups of different entities, the ownership of it may be shared by said entities in the corresponding proportion, based on the contributions made by their respective researchers.
All researchers attached to the Andalusian Health System of the province of Cádiz have at their disposal advisory and guidance services for the creation of spin-offs or Technology-Based Companies (EBT) that arise from technologies developed by researchers. In this way we accompany the entrepreneur in the different stages of setting up the company, offering him, in addition to advice, training and seeking financing for the development of his business idea.
First of all, inventors have to patent their results to protect their invention. In addition, in curricular terms, appearing in a patent as inventors supposes a recognition considered in the scales of professional promotion. According to the Resolution of November 23, 2010, of the Presidency of the National Commission for the Evaluation of Research Activity, a new field is established in relation to the transfer of knowledge and innovation, updating the specific criteria in each of the fields of evaluation. As indicated in this resolution, the research activity of those researchers who participate in patents in exploitation, which have been granted by the European Patent Office or extended internationally will be valued preferably. In economic terms, and as described in article 61 of Andalusian Law 16/2007, of December 3, and Decree 16/2012, of February 7, the SSPA investigator who, as a consequence of conducting research, development and innovation activities have obtained a result protected by an industrial property right, whose exploitation reports income to their employing institution, they will receive a special incentive according to the following percentages according to the income that this result produces:
|Annual gross income amount||Percentage to be distributed among the research staff||Percentage for the owner entity|
|Up to €10,000||65%||35%|
|Excess over €10,000 and up to €50,000||40%||60%|
|Excess over €50,000||34%||65%|
In this way, the inventor will obtain a direct financial benefit as a result of his invention.
Patents are valid in the country or countries where they are applied for. However, an initial application filed in Spain provides during the first year (priority period) protection for countries adhering to the Paris Convention. Before this period ends there is the possibility of extending protection internationally. It should be noted that the mere fact of applying for a patent does not give its holder the right to prevent third parties from exploiting his technology. Patents must go through an examination process in each of the countries or regions in which it is requested, after which it will be determined what degree of protection to which the owner is entitled.
The OTT-SSP assumes all the expenses associated with the presentation, processing and management of the patents, as well as, if applicable, their commercialization. The cost of a patent is variable, depending on several factors, including the number of countries in which protection is requested. Just to get an idea of the cost, for example, a patent applied for in Spain would involve between 700 and 1,000 euros of administrative fees. In the event that the applicant himself is in charge of managing it, he is allowed to pay over a period of approximately 3 years. In case of not managing it directly and doing it through an industrial property agent, the costs will increase.
First of all, it would be convenient for us to analyze the case together. From the Innovation Management department we can advise you on how to deal with the interested company, proposing different models of how to work with the company: collaboration agreements, provision of services, etc. and also help you protect the confidentiality of your projects.
From the Department of Innovation Management we offer you help in the search for commercial partners, which will allow you to find companies that are interested in licensing your patent, and putting it on the market. Likewise, we can advise you if you decide to create your own company and market the process yourself.
Do you have other questions? Contact us at the following email: firstname.lastname@example.org.