SPAIN Trends and Developments Contributed by: Mario Sol Muntañola, Sol Muntañola Abogados
Spain is not part of the so-called European Unitary Patent, governed by Regulations (EU) No 1257/2012 and No 1260/2012, which are administered by the European Patent Office (EPO) to simplify procedures, reduce costs and centralise litigation; the latter is man- aged by the Unified Patent Court (UPC), where dis- putes relating to infringement or validity are resolved. However, all other regulations do apply. Finally, at the international level, Spain is a party to all the main international treaties and conventions in this field (Paris, Munich or Strasbourg). Similarly, Spain has been party to the Patent Cooperation Treaty (PCT), which allows a patent application to be filed in more than 150 countries with a single application and has been in place since January 1996 as a member of the WTO. And among the most recent develop- ments, the Patent Law Treaty (PLT) has been in force since 2013. Competition Competition between companies benefits consumers since competition encourages companies to improve the quality of their products, enhance their services or lower their prices. The role of competition law is to regulate practices that restrict competition (such as agreements between companies that may distort competition, abusive conduct or business mergers). Law 29/2009 of 30 December, which modifies the legal framework that regulates unfair competition and advertising to improve the protection of consumers and users, reformed the previous law of 1991, incor- porating various EU directives (Directive 2005/29/EC of 11 May, on unfair commercial practices between businesses and consumers in the internal market, and Directive 2006/114/EC of 12 December on mislead- ing and comparative advertising), reorganising illegal competitive practices and adapting them to the mod- ern era. One of these unlawful acts (violation of trade secrets according to Article 13 of the Unfair Competition Law) acquired autonomy and independence of its own with the enactment of Law 1/2019, of 20 February, on Trade Secrets, which also incorporates Directive 2016/943 of 8 June on the protection of undisclosed
and business information (trade secrets) against their illegal acquisition, use and disclosure. In fact, information of a confidential nature that has economic value and provides a competitive advan- tage over competitors can constitute a valuable asset protected as a trade secret or industrial secret, as long as its confidentiality is maintained and ensured, as a tool to manage business competitiveness, public–pri- vate knowledge transfer and innovation in research. For this reason, the legislator decided to regulate it through a separate law, closely linked to unfair com- petition, but autonomously. To this end, it is advisable to bind the potential recipients (employees, collabora- tors, suppliers, and strategic partners) of this confi- dential information through confidentiality agreements and other measures that protect the information dis- closed to any recipient. In this way, manufacturing processes, assembly tech- niques, chemical formulations, product composition and any other type of technical and/or commercial information acquired through business experience – also known as “know-how” – can be protected. Know-how can be the subject of legal transactions such as licences or transfers, just like any other intan- gible asset of the company, and although it does not confer an exclusive right, its protection is achieved through mandatory confidentiality, as well as through the Law on Unfair Competition and Trade Secrets, and even the Penal Code which criminalised the violation of trade secrets or the misuse of information disclosed under an express or implied duty of confidentiality (Articles 278 and 279). Data Data, as a vehicle containing information, has become extremely valuable. This new dimension of information has made it an object of desire for many companies, both public and private. Faced with this new reality, legal systems have responded by regulating not only the handling of data, but, above all, the protection of those who own that data: natural persons, most importantly, but also legal entities. Each has its own protections, limitations, and exceptions in a new inter- national environment in which such information is both coveted and vulnerable.
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