It is time to take the step. You have an idea and you want to obtain a patent so that you are recognized as the author. But you're not sure what to do to patent your idea or where to go. If this is your case, here we will try to solve your doubts.
Patents give the right to prevent others from making or commercially using the invention, but only in the country where it was patented.
These are all the steps and what you need to know to get a patent in Spain. A process that between the application and the concession usually takes more than a year in the best of cases. If you are wondering what can be patented, how much does it cost and what procedures have to be done , this is a small guide.
What kind of ideas, products or prototypes can be patented
Patents in Spain are regulated by Patent Law 24/2015 , pending reform . It defines the patentability criteria, among which are the following:
- Let it be totally new in the world.
- Make it an inventive step (not something obvious).
- That it has an industrial application (that is, that it can be carried out and is not something abstract or simply an idea).
These are the three basic requirements, but the law also establishes some guidelines that will help us narrow the scope of what can be patented.
The object or procedure to be patented must be new and have industrial application. It is possible to patent a chip or a chemical product, but not a scientific theory or a literary work.
Objects or products are subject to patents, including those composed of biological matter, but in Spain discoveries, scientific theories and mathematical methods will not be considered patentable .
Neither can literary works or plans (protected by copyright), rules and methods for games or commercial activities, such as computer programs, be subject to patents.
An utensil, an instrument, a tool, an apparatus, a device or a part thereof... but not a breed of animal, a chemical product or a biological process. Although, since the patent law of 2015, the door has been opened to patent substances or compositions already known for a new use as medicine or therapeutic applications.
The OEPM has an information service where patentability reports are made and can also be consulted for more details. A request for information where the strictest secrecy is maintained, as described by the office itself.
The case of software programs is peculiar. The general rule establishes that they are not patentable, but the patent is contemplated from Europe in those cases "where an inventive technical contribution to the prior state of the art is included, regardless of whether they are implemented by means of hardware or software". Some examples would be the help of a process by means of a robotic arm or the improvement of a graphic display.
The patents of each country are exclusive, however, in the member countries of the World Trade Organization there is a period of 12 months to present the patent in other countries and expedite the process.
Alberto Segura , consultant in Industrial Property, trademarks and patents, explains that "an invention is considered susceptible of industrial application when its object can be manufactured in any type of industry, including agriculture".
In Spain there are two legal figures to protect an invention, patents with a duration of 20 years and a utility model, with a duration of 10 years and more relaxed patentability requirements.
In the case of such a complex subject, Segura explains that "the ideal is to invest in a professional firm to protect the invention", although he also points out that "it is becoming easier thanks to the amount of information available".
"A patent is not only your application, but a previous search, a good writing, a protection and profitability strategy..."
"In the end it is an investment that is very worthwhile and you will save a lot of time (which in the end is money), problems, and you will have support for other related issues, since a patent is not only your application, but a previous search, a good writing, a protection and profitability strategy...", reviews the expert.
How to explain the patent and what details to provide
The patent application must consist of a whole series of sections where the project is described "clearly and completely, in such a way that an expert in the field can execute it ". This includes a description of how it works, what the problem is solved or what the different components are.
You have to define well what you want to patent, what name, what brand, ensure that there is no other patent like it and a summary of all aspects. Patent drafting is no easy task . The OEPM itself recommends not rushing and trying to apply for a patent in a strategic way, requesting a patent lawyer, since the risk of making mistakes is very high . These experts will help in the correct application, always recommending signing a confidentiality agreement.
Javier Serrano , Industrial Property agent and lawyer at Bamboo Legal, explains the four main parts for a correct patent memory:
- A description of the invention; which, in turn, normally contains the object of the invention, to which sector of the technique it belongs, what is the known state of the art close to the invention and how it improves it, a detailed definition of the invention, a description of the incorporated drawings, and an explanation of what is known as the preferred embodiment of the invention, or an example of how the invention has been put into practice and the industrial application it has.
- A set of claims , which consist of a series of phrases that accurately and technically describe what protection is claimed for. When it is patented, a prototype is not deposited in the Spanish Patent and Trademark Office. It explains, in writing, what is being protected. The claims are the most important part of the patent specification.
- A series of drawings or figures that serve to illustrate the examiner and facilitate explanations.
- A summary , for the purposes of technical information, to facilitate searches in registry databases.
"The main, and most serious, failure is usually not defining the claims broadly enough; that is, claiming protection for something smaller than what is really wanted to be protected . This is usually caused by not putting the wording in the hands of of a professional, who knows how to make a set of claims that is complete enough to contemplate the different possibilities of the invention and protect it in the broadest possible framework", explains Serrano.
Once the patent is filed, it is no longer allowed to expand the subject matter. In other words, you can modify the wording but not expand the scope you want to patent. The lawyer recalls that "if the invention has already been disclosed once the patent has been filed (for example, because the product has been released for sale), any subsequent patent filing that attempts to fix the errors made in the first one may not be valid." for not meeting the main patentability requirement: novelty".
From the Audens law firm, Eneko Delgado also recommends writing the description after the claims because "although formally the claims will appear later in the patent application document, it is not possible to claim things not previously included in the description."
"The terminology to be used must be uniform, and each element of the invention will always be named in the same way so that the application has the greatest possible clarity. The description must be written in the most concise and clear way possible, without repetitions useless and in harmony with the claims It must be written in a clear and complete way so that an expert in the field can put it into practice, which allows an understanding of the technical problem raised as well as the solution to it, indicating the advantages of the invention in relation to the state of the prior art", describes Alberto Segura.
The patent must be written in a clear and complete manner so that an expert in the field can put it into practice.
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