SPAIN Law and Practice Contributed by: Mario Sol Muntañola, Javier Márquez Martín, Ferran Llaquet Ballarín and Ana Padial, Sol Muntañola Abogados
Sol Muntañola Abogados Avenida Diagonal 510, 3-1 08006, Barcelona Spain
Tel: +34 934 874 516 Fax: +34 934 879 542
Email: info@solmuntanola.com Web: www.solmuntanola.com
1. Patents 1.1 Legal Framework and Patentable Subject Matter Spain’s patent regime is governed mainly by Law 24/2015 on Patents. European and international instruments also apply: Spain is party to the EPC (European patents validated in Spain take effect under Spanish law where applicable) and the PCT; EU SPC rules apply for medicinal and plant protection prod- ucts. Patentable subject matter covers inventions “in all fields of technology” that are novel, involve an inven- tive step, and are industrially applicable. Biotechno- logical inventions, including isolated biological mate- rial, may be patented. Exclusions include inventions contrary to public order or morality and specific biotech prohibitions (eg, human cloning, germline modification, commercial use of human embryos, and certain animal genetic modifications), as well as methods of surgical or thera- peutic treatment and diagnostic methods performed on the human or animal body. Subject matter not regarded as an “invention as such” includes discov- eries, scientific theories, mathematical methods, aes- thetic creations, schemes and rules for mental acts, games or doing business, computer programs, and presentations of information. Consequently, source code as such is excluded from patentability; however, a new software-related inven- tion is not, provided it produces a technical effect and solves a technical problem beyond the mere
interaction between the program and the computer. This applies to computer-implemented inventions, such as the control of a robotic system. The same reasoning applies to business methods: in general, they are excluded, but if they are novel worldwide, solve a technical problem, and are implemented on a computer, they may be eligible for patent protection. AI-related inventions are not specifically excluded; they are assessed under the general criteria. Spain also provides utility models with a lower inventiveness threshold; processes, biological matter, and pharma- ceutical substances/compositions are excluded. 1.2 Patent Granting Procedure Spain uses a full substantive examination system handled by the Spanish Patent and Trademark Office (OEPM) under Law 24/2015 and its Implementing Regulation (RD 316/2017). After filing and formalities, the OEPM issues a search report with written opinion; the application is published around 18 months from filing/priority. The applicant must request substantive examination within three months of the search report’s publication. If patentability is confirmed, the patent is granted and published; post-grant opposition is avail- able for six months. Indicative timelines commonly run roughly two to three years from filing to grant, subject to prosecu- tion events. Official fees are governed by the OEPM price order regime. As a practical budgetary estimate for a stand- ard application through grant (filing, search, examina- tion, publication; excluding attorney fees, translations,
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