Andalusian Public Health System Virtual Library
RESEARCH+
What is the difference between intellectual and industrial property?

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 creations of the mind. In this section we are talking about literary works, plays, films, 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 Office of Patents and Trademarks.

The most commonly used industrial property rights are Patents and utility models, which protect inventions consisting of products and processes that can be reproduced and reiterated for industrial purposes.

Why should exploitable scientific results be protected?

The only way to obtain a commercial return on the ideas and research results generated is by obtaining patent protection or any other industrial or intellectual property right. It should be borne in mind that, in order to put a product on the market, a significant investment must normally be made, which would be meaningless 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 and utility models, which protect inventions consisting of products and processes that can be reproduced and reiterated for industrial purposes.

What kind of results can be patented?

Not everything is patentable. As a sample, the Law of Patents indicates that they are NOT patentable:

  • Discoveries, scientific theories and mathematical methods.
  • Aesthetic creations.
  • Plans, principles and methods for the exercise of intellectual activities, for games or for economic activities, as well as computer programs.
  • The ways of presenting information.

Inventions whose commercial exploitation is contrary to public order or morality are also not patentable, in particular, they are NOT considered patentable:

  • Human cloning procedures.
  • Procedures for modifying the germ line genetic identity of human beings.
  • The use of human embryos for industrial or commercial purposes.
  • Procedures for the modification of the genetic identity of animals that involve suffering for these animals without substantial medical or veterinary utility for man or animal, 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.
Can I publish in scientific journals and patent? What is the order?

There is no incompatibility between patenting and publishing research results in a journal, but it is necessary to proceed in the correct order. First protect, then publish and finally transfer. It should be borne in mind that, for a patent application to be finally granted, the research result must meet, among others, the requirement of being novel. Thus, 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 Office of Patents and Trademarks. After filing the application for protection, it becomes effective at that very moment, with the priority date, from which the content of the invention may be published without having to wait for the patent to be granted.

Who is the owner of a patent?

According to the Spanish Law of Patents and Trademarks and the Andalusian Law 16/2007 of December 3, 2007, of Science and Knowledge, regarding labor inventions, it is the entity (private or public Company, Autonomous Organization, University, Foundation, etc.) to which the inventor(s) belong(s) that owns the ownership rights of the patent. When the invention arises as a result of collaboration between groups of different entities, the ownership of the invention may be shared by said entities in the corresponding proportion, depending on the contributions made by their respective researchers.

Can I create a Spin-off? What do I need?

All researchers attached to the Andalusian Health System in the province of Cádiz have at their disposal advisory and guidance services for the creation of spin-offs or Technology Based Companies (TBC) that arise from technologies developed by researchers. In this way we accompany the entrepreneur in the different stages of setting up the company offering, in addition to advice, training and search for funding for the development of their business idea.

What benefits do inventors derive from patenting their results?

First of all, inventors must patent their results to protect their invention. Moreover, in curricular terms, appearing in a patent as inventors means a recognition considered in the 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 is established in relation to the transfer of knowledge and innovation, updating the specific criteria in each of the evaluation fields. According to what is indicated in this resolution, the research activity of those researchers who participate in Patents in exploitation, which have been granted by the European Office of Patents or extended internationally, will be preferentially valued. In economic terms, and as described in article 61 of the Andalusian Law 16/2007, of December 3, and Decree 16/2012, of February 7, the SSPA researcher who as a result of the performance of research, development and innovation activities has obtained a result protected by an industrial property right, whose exploitation brings income to his employing institution, will receive a special incentive according to the following percentages depending on the income that this result produces:

Gross annual income Percentage to be distributed among research personnel Percentage for the owning 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 from his invention.

Where is a patent valid?

The Patents are valid in the country or countries where they are applied for. However, an initial application filed in Spain provides protection during the first year (priority period) for countries adhered to the Paris Convention. Before this period ends, there is the possibility of extending protection internationally. It should be borne in mind that the mere fact of applying for a patent does not give its holder the right to prevent third parties from exploiting its technology. The Patents must go through an examination process in each of the countries or regions in which it is applied for, after which the degree of protection to which the holder is entitled will be determined.

How much does it cost to patent an invention and who bears the costs?

The OTT-SSP assumes all the costs associated with the filing, prosecution and management of Patents, as well as, if necessary, its commercialization. The cost of a patent varies, depending on several factors, including the number of countries in which protection is sought. Just to give an idea of the cost, for example, a patent applied for in Spain would involve between 700 and 1000 euros in administrative fees. In case the applicant is in charge of managing it himself, he is allowed to pay in 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.

If a company is interested in my results, how should I deal with it?

First of all, it would be a good idea 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 to protect the confidentiality of your Projects.

How can I get my idea to market?

From the Innovation Management Department 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 put it on the market. We can also advise you if you decide to create your own company and commercialize the process yourself.

Do you have other questions? Contact us at the following email: julio.rios@inibica.es.