Patents and Utility Models

Patentability Requirements

The Patent Act (Ley 24/2015) establishes three cumulative requirements for an invention to be patentable:

1. Novelty

The invention must not be part of the "prior art," meaning it cannot have been disclosed anywhere in the world before the filing date. This includes publications, trade fair presentations, public use or prior commercialization.

There is a 6-month grace period for abusive disclosures (by unauthorized third parties) or disclosures at official international exhibitions.

2. Inventive step

The invention must not be obvious to a person skilled in the art. It must represent a qualitative leap over the prior art. This is the hardest requirement to prove and the most litigated.

3. Industrial application

The invention must be capable of being manufactured or used in any industry, including agriculture. Scientific discoveries, mathematical theories, business methods and computer programs "as such" are excluded (though computer-implemented inventions may be patentable if they produce a technical effect).

OEPM Procedure

1. Application: Description, claims, abstract and drawings (if applicable). Filing fee: 109.79 €.
2. State of the Art Report (IET): Mandatory since 2017. Analyses novelty and inventive step. Fee: 656.06 €.
3. Substantive examination: If the IET is favorable, a substantive examination follows.
4. Grant: Patents are granted for 20 years from the filing date, subject to annual fees (from the third year).

European Patent (EPO)

The European Patent Office allows protection in up to 39 States through a single application. The Unitary Patent (effective since June 2023) simplifies validation, covering all participating States with a single act. Spain does not participate in the Unitary Patent.

Utility Model vs Patent

The utility model protects lower-level inventions related to the configuration or structure of an object. Key differences: patents last 20 years with strict inventive step requirements and a mandatory search report; utility models last 10 years with lower inventive step requirements and direct registration (no search report).

Utility models are ideal for incremental improvements to existing products where the innovation is useful but not revolutionary.