Frequently asked questions
What is intellectual property?
Intellectual property refers to creations of the mind. It implies a creative aspect and potential commercialisation. Intellectual property is divided into two categories: industrial property, including inventions, patents, trademarks, drawings and models; and authors' rights, which cover literary and artistic works. It can also refer to knowledge that may be confidential and which is shared only through confidentiality agreements. The most common types of intellectual property and certificates are explained below:
Patent
A patent is an exclusive territorial right which grants its holder a legal monopoly on exploiting an invention for 20 years as payment for the description and publication thereof. Any public disclosure of the invention prior to the patent application makes it impossible to grant the patent. A patent needs to conform to the following requirements in order to be granted: novelty, inventive activity (non obviousness), adequate description and industrial applicability.
Utility models
A utility model is similar to a patent; in fact, it is often referred to as a "petty patent" or "small patent” given that it protects inventions with a lesser degree of inventiveness. The key differences are: the term of protection is 10 years; the requirements for granting it are less stringent; they can only be extended to devices; and, they are much cheaper than a patent.
Trademarks
A trademark or logo is a certificate that grants the right to exclusive use to identify a product or service in the marketplace and distinguishes it from others. A trademark is valid indefinitely provided annuity payments continue to be made to maintain it.
Industrial designs
An industrial design is the ornamental or aesthetic aspect of an article. The industrial design can consist of three-dimensional features, such as the shape or surface of an article, or two-dimensional features, such as patterns, lines or colour. A design is valid indefinitely provided annuity payments are made to maintain it.
Author's Rights and Copyright
The term relates to all the legal provisions that allow the author of a work to prevent others from commercialising it without the author's authorisation. It includes intellectual creations, such as literary, musical, audiovisual and artistic works and computer programs. In Europe the right is valid for up to 70 years after the author's death.
Patent
A patent is an exclusive territorial right which grants its holder a legal monopoly on exploiting an invention for 20 years as payment for the description and publication thereof. Any public disclosure of the invention prior to the patent application makes it impossible to grant the patent. A patent needs to conform to the following requirements in order to be granted: novelty, inventive activity (non obviousness), adequate description and industrial applicability.
Utility models
A utility model is similar to a patent; in fact, it is often referred to as a "petty patent" or "small patent” given that it protects inventions with a lesser degree of inventiveness. The key differences are: the term of protection is 10 years; the requirements for granting it are less stringent; they can only be extended to devices; and, they are much cheaper than a patent.
Trademarks
A trademark or logo is a certificate that grants the right to exclusive use to identify a product or service in the marketplace and distinguishes it from others. A trademark is valid indefinitely provided annuity payments continue to be made to maintain it.
Industrial designs
An industrial design is the ornamental or aesthetic aspect of an article. The industrial design can consist of three-dimensional features, such as the shape or surface of an article, or two-dimensional features, such as patterns, lines or colour. A design is valid indefinitely provided annuity payments are made to maintain it.
Author's Rights and Copyright
The term relates to all the legal provisions that allow the author of a work to prevent others from commercialising it without the author's authorisation. It includes intellectual creations, such as literary, musical, audiovisual and artistic works and computer programs. In Europe the right is valid for up to 70 years after the author's death.
Why protect exploitable scientific outcomes?
Protection prevents third parties from exploiting something that is protected by a protection certificate. Its absence diminishes, and even destroys any commercial value of a research outcome, regardless of its worth. In general, the development and commercialisation of outcomes requires significant investments and a high level of risk; these are only accepted if exclusive exploitation rights are available for sufficient time to recoup the investments made.
What types of outcomes can be patented?
Spanish Patents Act in Art. 4, and the European Patent Convention in Art. 52, suggest that patents CANNOT be granted for:
- Discoveries, scientific theories and mathematical methods.
- Aesthetic creations.
- Schemes, rules and methods for performing mental acts, playing games or doing business, and computer programs.
- Presentations of information.
Methods of treatment of the human or animal body by surgery or therapy or diagnostic methods practised on the human or animal body cannot be regarded as inventions that are capable of industrial application and are therefore not patentable. This provision does not apply to products, especially substances or compositions, or the inventions of apparatus or instruments to implement such methods which can indeed by protected by patents. Furthermore, and as a consequence of the incorporation into Spanish law of Community Directive 98/44/EC in respect of the legal protection of biotechnological inventions, inventions whose commercial exploitation is contrary to public policy or accepted principles of morality (Art. 5 of the Patents Act) are not patentable. In particular, the following are NOT regarded patentable:
- Human cloning processes
- Processes for modifying the germinal genetic identity of the human being.
- The use of human embryos for industrial or commercial purposes.
- Processes for modifying the genetic identify of animals which may cause them suffering without any substantial medical or veterinary benefit for man or animal and also animals resulting from such processes.
- Plant and animal varieties. However, inventions relating to plants and animals are patentable if the technical feasibility of the invention is not confined to a particular plant variety or breed of animal.
- Essentially biological processes for obtaining plants or animals. For these purposes, processes are considered to be essentially biological if they consist wholly of natural phenomena, such as crossing or selection.
- The human body, at the various stages of its formation and development, and the simple decoding of one of its elements, including the discovery of a sequence or partial sequence of a gene. However, an element isolated from the human body or obtained in any other way through a technical process, including the total or partial sequence of a gene, can be regarded a patentable invention, even if the structure of such an element is identical to that of a natural element. The industrial application of a total or partial sequence of a gene must be explicitly set out in the patent application.
Are publishing in scientific journals and patenting incompatible?
The two things are not incompatible but it is important to proceed in the right order. For a patent application to be finally granted, the research outcome must comply with a series of requirements, one of which is novelty. A patent will thus never be validly granted if its content is not new, namely if it has been made public or disclosed before an application was filed for protection with the relevant body (in Spain's case the Spanish Patent and Trademark Office), On submission of the application, the content of the invention can be made public without having to wait for the patent to be granted, since protection becomes effective at the time of the patent application (priority date).
Are patents secret documents?
Absolutely not. The patent is a document which is publicly accessible with a view to increasing technological assets. The patent processing and grant systems include the publication of the application (generally 18 months from the initial date of submission), as a preliminary or simultaneous step to its being granted. The only exception consists of patents relating to inventions that may be in the interests of national security; these will be entered into a secret register (Art. 119 to 122 in the Patents Act).
Who has ownership of a patent?
Under Section IV of the Spanish Patent and Trademarks Act and article 55 of the Act of Andalusia 16/2007, of 3 December, in respect of Science and Knowledge, relating to inventions by employees, it is the organisation (private or public company, regional body, university, foundation, etc.) to which the inventor or inventors belong(s) that owns the rights of the patent. When the invention arises as a result of collaboration between groups from different organisations, ownership can be shared by these organisations as a proportion of the contributions made by their respective researchers.
What benefits does patenting their outcomes give inventors?
For curriculum purposes, appearing as an inventor on the patent is a recognition that can be considered in benchmarks for career advancement. In this respect, the Ruling of 23 November 2010by the Chair of the National Evaluation Committee of Research Activity which established a new field relating to the transfer of knowledge and innovation and updated the specific criteria in each field of evaluation, establishes that, in evaluating research activity, preference will be given to researchers who participate in patents in exploitation that are granted by the European Patent Office or extended internationally.
For economic purposes, under article 61 of Act of Andalusia 16/2007, of 3 December, and Decree 16/2012, of 7 February, SSPA researchers, who, as a consequence of conducting research, development and innovation activities, have protected their outcomes with an industrial property right, the exploitation of which brings income to their employing institution, will receive a special incentive in line with the following percentages:
For economic purposes, under article 61 of Act of Andalusia 16/2007, of 3 December, and Decree 16/2012, of 7 February, SSPA researchers, who, as a consequence of conducting research, development and innovation activities, have protected their outcomes with an industrial property right, the exploitation of which brings income to their employing institution, will receive a special incentive in line with the following percentages:
| Sum of gross annual income | Percentage to be split between the research personnel | Percentage for the owner organisation |
| Up to €10,000 | 65% | 35% |
| Excess over €10,000 and up to €50,000> |
40% | 60% |
| Excess over €50,000 | 34% | 65% |
Art. 9 Special Incentivation in Decree 16/2012, of 7 February, regulating the management and transfer of the outcomes of research, development and innovation activities, ownership of which belongs to the agencies and other bodies dependent on the Regional Ministry responsible for health.
Where is a patent valid?
Patents are valid certificates in the country or countries in which the application is made. However, an initial application in Spain affords protection for the first year (priority year) for member countries of the Paris Convention. Before this term expires, protection can be extended internationally. It is essential to bear in mind that just applying for a patent does not grant the owner the right to prevent third parties exploiting his technology. For this to happen, patents are subject to an examination process in each country or region in which the application is made; and this finally determines the level or protection to which the owner has a right.
Who pays the costs of patenting and how much does it cost?
The OTT-SSPA will be responsible for all patent filing, processing and management costs, and all costs relating to commercialisation. The cost of a patent is variable, and to a large extent depends on the number of countries in which protection is filed. By way of indication, a patent application in Spain can represent an outlay of between €700 and €1,000 for administrative fees to be paid in a period of approximately 3 years, if managed by the applicant himself. If the services of an industrial property agent are used, the cost will increase in proportion to the professional fees charged. There are publications that estimate an approximate outlay of €50,000 for a patent valid for countries that have signed the European Patent Convention (31 at present) with a term of validity of between 10 and 12 years. Extension to countries that require translation such as Japan, China, India, Russia, etc. significantly raises the processing costs.