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Examination of patentability of the New Patent Law in Spain

One of the most important patentability requirements of the New Patent Law in Spain, which will come into force on April 1, 2017, is the new and unique procedure for granting patents.

A compulsory examination procedure is established which it will assess, among others, compliance with the requirements of novelty and inventive step, unlike the previous system that also contemplated the possibility that these aspects of the patent was not examined.

The current Patent Law allows obtaining a concession even if the protected invention does not meet any of the requirements of novelty and inventive step which, as indicated by the preamble of the new law, may end up transferring to competitors the cost and burden to override patents that should never be granted, and encourages falsifications of competition based on titles presumption of validity which can only be destroyed through the courts.

The mandatory substantive examination of the new patent law aims to check that both, the patent and the invention to which it relates, meet all the requirements, formal, technical and patentability established by law.

The obligation to submit patent applications for examination can sometimes affect the recommended protection strategy. For example, there may be situations in which the use of utility model -which is not subject to substantive examination during its consideration of granting- may be more effective for obtaining a right valid protection either directly or via conversion of a patent application for utility model.



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