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| Spanish Patent and Trademark Office By Ricardo Ricote (Via Flickr) |
However in
a breakthrough decision the Madrid High Court has now ordered the Spanish PTO
to resume prosecution of a patent application which protects an innovative test
for detecting the presence of certain viruses in the body. The applicant argued
that Article 76.3 of the Administrative Procedure Act, which governs all
applications to government offices, should prevail as it was passed by Parliament
four years after the 1986 Patent Act. The Administrative Procedure Act treats the citizen much more
benevolently, allowing him to remedy the defect even though the time limit for
doing so has expired. In fact, he can remedy it at any time up to and including
the day the public office notifies him of the expiration of the time limit. In
the case of the search report, this will be the day on which the withdrawal of
the application is published in the Official Gazette of the SPTO. The applicant
may request the search report and pay the fee that same day.
This judgment
(no. 77/2014 of 29 January 2014 in appeal no. 458/2011) breaks with the practice
of the Spanish PTO. It has enormous implications as the same reasoning is
applicable to any occasion on which an applicant for a patent, trademark or
industrial design fails to comply with a step in the procedure, for instance if
he forgets to pay the annuity fee.
"the same reasoning is applicable to any occasion on which an applicant for a patent, trademark or industrial design fails to comply with a step in the procedure, for instance if he forgets to pay the annuity fee. "
ReplyDeleteNot sure about that. Article 76.3 of the LRJPAC applies to administrative procedure. Strictly speaking, as far as I know, there isn't an administrative procedure in place which deals with patent annuity fees.
Of course, there is a procedure (see,for example, https://sede.oepm.gob.es/eSede/es/pagoTelematico/procedimientosPagoAEAT.html) but I wouldn't say that this is an "administrative procedure" in the sense of the LRJPAC.
thanks for this usefull article, waiting for this article like this again.https://www.youtube.com/c/AGNnewsChannel
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