Nearly 30
years after passage of the current Patent Act, the legislation currently in
force plainly stands in need of revision to bring it up to date with the
advances made by society since that time. With this in mind, the Spanish Patent
and Trademark Office (SPTO) has proposed a revised Patent Act, and a second
draft of the proposed bill (in Spanish) was
published this past month of December.
Lately, one
of the most controversial aspects of the current system is what is known as the
alternate route to grant, where the applicant may choose between the traditional
granting procedure, in which all patent applications mature to grant, and the
granting procedure involving preliminary examination, in which SPTO examiners
examine the patent application, which will be granted only if the invention as
claimed is deemed to fulfil the requirements of novelty, inventive step
(non-obviousness), and industrial applicability. Unfortunately, this latter
granting procedure has never taken hold, and today just 8 % of applications
follow the route involving examination of the application. This shifts the
burden of having to cancel patents that should never have been granted onto
society, competitors, and the courts.
This is
probably the main change in the draft bill, and from enactment substantive
examination of patent applications will be mandatory, so that patents will only
be granted where the invention claimed fulfils the legal patentability
requirements.
Still, it
is by no means the only change included in the new draft bill, which would put
in place quite a few new provisions intended to have far-reaching effects on
patent law by streamlining the system, simplifying requirements, doing away
with formalities, and avoiding involuntary loss of rights.
Some of the
most important of these changes are:
- Simplifying the requirements for according a filing date by allowing first filings to be made in any language, though subsequently filing a Spanish translation would be compulsory.
- Bringing forward the prior art search to the filing stage, hence the search fee will have to be paid at the time of filing.
- Explicitly declaring medical uses or new therapeutic applications of known substances to be patentable.
- Shifting the opposition stage to after grant.
- Implementing new administrative procedures for revoking patents and for limiting them at the request of the patent holder, who will be entitled to limit the scope of the claims at any time during the legal lifetime of a patent.
Patents are
not the only rights to be slated for significant changes: amendments are also
being proposed for utility models, a mainstay of small and medium sized
enterprises (SMEs) in Spain.
The novelty
requirement for utility models is to be brought into line with the novelty
requirement for patents, thereby removing a source of uncertainty in existing
law. Conversely, the degree of inventive step will not be changed and will
continue to be lower than required for patents. At the same time, the range of
inventions that can be protected as utility models will be enlarged to include
chemical substances, biotechnology inventions and pharmaceutical compositions
excluded.
These
changes could make utility models into an interesting option as, for instance,
a means of obtaining rapid protection while a patent is being prosecuted more
slowly.
And lastly
turning to fees, the draft bill also provides for a 50-% reduction in the
filing, search, and examination fees for certain inventors and SMEs, to make it
easier for them to protect their inventions.
In short, the changes are intended to bring the
patent system up to date and should be a step forward in providing protection
for innovation in Spain.
Author: Francisco J. Saez
Visit our website: http://www.elzaburu.es/
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