FREQUENTLY ASKED QUESTIONS
Industrial property in Spain refers to the protection granted to all creations related to industry: Patents utility models, distinctive signs, and designs. However, intellectual property is linked to the protection of creations of the mind. In this section, we discuss literary works, plays, films, musical works, works of art, drawings, paintings, photographs, sculptures, and architectural designs. In both cases, the office responsible for processing these rights is the Spanish Patents Trademark Office.
The most commonly used industrial property rights are Patents utility models, which protect inventions consisting of products and processes that can be reproduced and repeated for industrial purposes.
The only way to commercially exploit the ideas and research results generated is by obtaining protection through a patent or any other industrial or intellectual property right. It should be borne in mind that, in order to place a product on the market, a significant investment is usually required, which would not make sense without the exclusive rights provided by industrial and intellectual property rights, which greatly facilitate the recovery of that investment. The most commonly used industrial property rights are Patents utility models, which protect inventions consisting of products and processes that can be reproduced and repeated for industrial purposes.
Not everything is patentable. As an example, the Patents Law Patents that the following are NOT patentable:
- Discoveries, scientific theories, and mathematical methods.
- Aesthetic creations.
- Plans, principles, and methods for intellectual activities, games, or economic activities, as well as computer programs.
- Ways of presenting information.
Inventions whose commercial exploitation is contrary to public order or morality are also not patentable. Specifically, the following are NOT considered patentable:
- The procedures for cloning human beings.
- Procedures for modifying the germline genetic identity of human beings.
- The use of human embryos for industrial or commercial purposes.
- Procedures that modify the genetic identity of animals and cause them suffering without substantial medical or veterinary benefit to humans or animals, and 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 between patenting and publishing research results in a journal, but you must proceed in the correct order. First protect, then publish, and finally transfer. It should be noted that, in order for a patent application to be finally granted, the research result must, among other things, meet the requirement of being novel. Thus, if its content is not new, a patent will never be granted, with new meaning that it has not been made public or disclosed before applying for protection before the Spanish Patents Trademark Office. After filing the application for protection, it becomes effective at that very moment, with the obtaining of the priority date, from which point the content of the invention may be published without having to wait for the patent to be granted.
In accordance with the Spanish Patents Trademark Law and Andalusian Law 16/2007 of December 3, on Science and Knowledge, relating to workplace inventions, it is the entity (private or public company, autonomous body, university, foundation, etc.) to which the inventor or inventors belong that owns the patent rights. When the invention arises as a result of collaboration between groups from different entities, ownership of the invention may be shared by those entities in the appropriate proportion, depending on the contributions made by their respective researchers.
All researchers affiliated with the Andalusian Health System in the province of Cádiz access to advisory and guidance services for the creation of spin-offs or Technology-Based Companies (TBCs) that arise from technologies developed by researchers. In this way, we accompany entrepreneurs through the different stages of setting up a company, offering them not only advice, but also training and assistance in finding funding for the development of their business idea.
Firstly, inventors must patent their results in order to protect their invention. Furthermore, in curricular terms, appearing on a patent as an inventor is considered recognition in professional promotion scales. According to the Resolution of November 23, 2010, of the Presidency of the National Commission for the Evaluation of Research Activity, a new field has been established in relation to the transfer of knowledge and innovation, updating the specific criteria in each of the evaluation fields. As indicated in this resolution, preference will be given to the research activity of those researchers who participate in Patents that have been granted by the European Patents Office Patents extended internationally. In economic terms, and as described in Article 61 of Andalusian Law 16/2007, of December 3, and Decree 16/2012, of February 7, SSPA researchers who, as a result of carrying out research, development, and innovation activities, have obtained a result protected by an industrial property right, the exploitation of which generates income for their employing institution, will receive a special incentive according to the following percentages based on the income generated by this result:
| Amount of gross annual income | Percentage to be distributed among 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 economic benefit as a result of their invention.
Patents valid in the country or countries where they are applied for. However, an initial application filed in Spain provides protection for the first year (priority period) for countries that are signatories to the Paris Convention. Before this period ends, it is possible to extend the protection internationally. It should be noted that the mere fact of applying for a patent does not give the holder the right to prevent third parties from exploiting their technology. Patents undergo an examination process in each of the countries or regions where they are applied for, after which the degree of protection to which the holder is entitled will be determined.
The OTT-SSP assumes all costs associated with the filing, processing, and management of Patents, as well as their commercialization, if applicable. The cost of a patent varies depending on several factors, including the number of countries in which protection is sought. Just to give you an idea of the cost, for example, a patent applied for in Spain would involve between €700 and €1,000 in administrative fees. If the applicant is responsible for managing the patent themselves, they are allowed to pay over a period of approximately three years. If they do not manage it directly and do so through an industrial property agent, the costs will increase.
Firstly, it would be advisable for us to analyze the case together. The Innovation Management department can advise you on how to deal with the interested company, proposing different models for working with the company: collaboration agreements, provision of services, etc., and also help you to protect the confidentiality of your Projects.
The Innovation Management Department can help you find business partners, enabling you to identify companies that are interested in licensing your patent and bringing it to market. We can also advise you if you decide to set up your own company and market the process yourself.
Do you have any other questions? You can contact us via the following email addresses:
julio.rios@inibica.eu / paula.castro@inibica.eu