A Patent is an exclusive industrial property right, which provides the owner to profit in an exclusive and limited way an invention, during 20 years, after the grant of the right, following an administrative procedure staffed by the Oficina Española de Patentes y Marcas (Spanish Patent and Trademark Office «SPTO»).
On condition that the patent can be filed, the invention must meet a triple requirement:
- World novelty, in other words, the invention is not known in the body of existing knowledge in its technical field.
- It is necessary an inventive step, that means that it could not be obviously deduced by a person expert in the relevant technical field.
- The invention must be capable of industrial application, in other words, it must be capable of being use in a product. The scientific theories are not accepted as "patentable".
The patents can protect a device or product, a machine, a method of mass producing, or a procedure to manufacture a product.
Instead, the ideas, scientific discoveries, mathematical formulas, computer programs, and any other inventions against good morals or public order are not accepted as "patentable".
- How to protect a Patent?
Options to protect an invention through the patent:
The company must realize a structural policy of Industrial Property to coordinate the legal and commercial department. Both departments must know the geographic zones of marketing inventions, as well as, the actual and future product and service portfolio to protect them around the world as patent.
The right granted to the owner by a patent is not so much the right of manufacturing, the right of marketing, or the right of using the patent, but above all, the patent confers a negative right to exclude others from manufacturing, marketing, or using the patented product in the trade.
Patent protection is granted for 20 years from the filing date of the application. To maintain in force, the owner must pay an annual administration fee from it is granted.
The areas of protection are in keeping with a triple typology of patent:
- National Patent
It is that patent which is granted following an administrative procedure provided in the Spanish Patent Law (Law 24/2015) and staffed by the Oficina Española de Patentes y Marcas (Spanish Patent and Trademarks Office «SPTO»). The owner wins the exclusive right to use it for 20 years (not subject to extension).
The national patent, once is granted, protects the exclusive rights to use the invention in the market, and the owner win the right to avoid the use of its invention by any third party without its consent.
The owner has the obligation to pay an annual administration fee from it is granted.
- European Patent
The European Patent -not to be confused with the EU system as in trade marks-, is the system that allows grant the protection of an invention through an European Patent application even in 38 countries from the European continent who have signed the European Patent Convention.
The European Patent application can be presented in the European Patent Office (EPO) directly, or through the National Offices who will send it to EPO. Finally, the EPO will send the application to the National offices in the 38 countries, moment wherein the application is divided in a bundle of national applications following a single procedure in that country.
- International Patent
The international patent allows the extension of a national patent in the selected countries, if they have signed the Patent Cooperation Treaty (PCT). This international agreement is staffed by the World Intellectual Property Organization (WIPO).
The distinctive feature of the international patent lies on the fact that the procedure allows the owner of a patent extends the protection of a national patent, in several countries, using a single procedure.
The patent office of each country (in Spain, the Oficina Española de Patentes y Marcas), will send the application for the registration of an International patent in several countries to the WIPO, with headquarters in Geneva. Later, the WIPO will send the application to the patent office in the countries selected, moment wherein the application is divided in a bundle of national applications following a single procedure in that country.