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. Intellectual Property, however, relates 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 Office for Patents and Trademarks.
The most commonly used intellectual property rights are trademarks ( Patents ) and utility models, which protect inventions consisting of products and processes that can be reproduced and repeated for industrial purposes.
The only way to commercially capitalize on the ideas and research results generated is by obtaining protection through a patent or any other industrial or intellectual property right. It is important to note that bringing a product to market typically requires a significant investment, 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 s and utility models, which protect inventions consisting of products and processes that can be reproduced and repeated for industrial purposes.
Not everything is patentable. For example, the Patents Act states that the following are NOT patentable:
- Discoveries, scientific theories, and mathematical methods.
- Aesthetic creations.
- Plans, principles, and methods for intellectual pursuits, games, or economic activities, as well as computer programs.
- Ways to present information.
Inventions whose commercial exploitation would be contrary to public order or morality are also not patentable; specifically, the following are NOT considered patentable:
- Procedures for cloning humans.
- Procedures for modifying the germline genetic identity of humans.
- The use of human embryos for industrial or commercial purposes.
- Procedures that alter the genetic identity of animals and cause them suffering without providing any substantial medical or veterinary benefit to humans or the animals themselves, and the animals resulting from such procedures.
- The human body, in the various stages of its formation and development, as well as the simple discovery of one of its components.
There is no conflict between patenting and publishing research results in a journal, but you must follow the correct order: first protect, then publish, and finally transfer. It is important to note that, for a patent application to ultimately be granted, the research result must meet, among other requirements, the requirement of novelty. Thus, if its content is not new—defined as not having been made public or disclosed prior to filing for protection with the Spanish Office of Patents s and Trademarks—a patent will never be granted. Once the application for protection is filed, it takes effect immediately, with the granting of a priority date; from that date forward, 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 Andalusian Law 16/2007 of December 3, on Science and Knowledge, regarding employee inventions, it is the entity (private or public company, autonomous agency, university, foundation, etc.) to which the inventor or inventors belong that holds the ownership rights to the patent. 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, based on the contributions made by their respective researchers.
All researchers affiliated with the Andalusian Health System in the province of Cádiz have access to 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 support entrepreneurs through the various stages of starting a business by offering them—in addition to advice—training and assistance in securing funding to develop their business ideas.
First, inventors must patent their findings to protect their invention. Furthermore, in terms of their résumés, being listed as an inventor on a patent is a form of recognition that is taken into account in professional promotion criteria. According to the Resolution of November 23, 2010, issued by the Presidency of the National Commission for the Evaluation of Research Activity, a new category has been established regarding knowledge transfer and innovation, and the specific criteria in each of the evaluation categories have been updated. As indicated in this resolution, preference will be given to the research activity of those researchers who participate in Patents in the exploitation of patents that have been granted by the European Patent Office Patents or extended internationally. In economic terms, and as described in Article 61 of Andalusian Law 16/2007, dated December 3, and Decree 16/2012, of February 7, an SSPA researcher who, as a result of conducting research, development, and innovation activities, has obtained a result protected by an industrial property right—the exploitation of which generates revenue for the researcher’s employing institution—shall receive a special incentive in accordance with the following percentages based on the revenue generated by that result:
| Annual Gross Income Amount | Percentage to be distributed among research staff | Percentage for the parent entity |
| Up to €10,000 | 65% | 35% |
| Amount exceeding €10,000 and up to €50,000 | 40% | 60% |
| Amount exceeding €50,000 | 34% | 65% |
In this way, the inventor will receive a direct financial benefit as a result of his invention.
Patents s are valid in the country or countries where they are filed. However, an initial application filed in Spain provides protection for the first year (priority period) in countries that are parties to the Paris Convention. Before this period expires, it is possible to extend the protection internationally. It should be noted that the mere act of filing a patent application does not grant the applicant the right to prevent third parties from exploiting their technology. Patents must undergo an examination process in each of the countries or regions where they are filed, after which the extent of protection to which the applicant is entitled will be determined.
The OTT-SSP covers all expenses associated with the filing, processing, and administration of Patents, as well as, where applicable, their commercialization. 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 application filed in Spain would incur between 700 and 1,000 euros in administrative fees. If the applicant handles the process themselves, they are allowed to pay over a period of approximately 3 years. If they do not handle it directly and instead use an intellectual property agent, the costs will increase.
First, it would be a good idea for us to analyze the case together. The Innovation Management Department can advise you on how to deal with the interested company, suggesting different models for working with it—such as collaboration agreements, service contracts, etc.—and also help you protect the confidentiality of your Projects.
The Department of Innovation Management offers assistance in finding business partners, which will help you identify companies interested in licensing your patent and bringing it to market. We can also advise you if you decide to start your own company and market the process yourself.
Do you have any other questions? You can contact us at the following email addresses:
paula.castro@inibica.eu