See links related to protecting R&D and innovation (only available in spanish)

Protecting research results is a basic part of the innovation process, to the extent that it enables the company to gain benefit from the investment they have made in R&D. However, if we consider the data on patents, which is one of the protection methods for which most statistical information is available, Spain's position vis-à-vis innovation protection is negative: according to the OECD, in 1997 Spanish residents applied for 2,270 patents, equivalent to 60 applications per million inhabitants. This figure contrasts with the results for other countries: for each million inhabitants, there are 250 patent applications in the European Union as a whole, 550 in Germany, 310 in the United Kingdom and 450 in the United States.

More recent data supplied by Eurostat shows that in 2001 the number of patent applications arriving at the European Patent Office (EPO) per million inhabitants was 161 for the EU as a whole, compared to 24 from Spain, which is well behind the 310 from Germany. In the same year, 2001, at the United States patent office (USPTO) the patent rate was 80 per million inhabitants for the EU and only 9 for Spain, far behind the 147 from Germany and the 322 from the USA.

There are several ways of protecting innovation in Spain, which differ according to either the type of results obtained in the research or in legal terms: Industrial Property Protection (patents), Intellectual Property Protection and Industrial Secrets.

Industrial Property Protection. Patents

Industrial Property is a set of exclusive rights that protects both the innovative activity involved in new products, procedures or designs, and commercial activity, by exclusively identifying products and services available in the marketplace. In Spain, the body that grants industrial property rights is the Spanish Patents and Trademarks Office (OEPM). There are various types of protection: patents, complementary protection certificates, models of use, industrial models and drawings, semiconductor product topographies, trademarks, commercial names and company signs. Their difference lies in the procedures that need to be followed to obtain the right, the validity period of the right, and so on.

Patents are the main means of protection. A patent is a certificate which recognises the right to exclusively exploit the patented invention, preventing others from making, selling or using it without the proprietor's consent. The patent may refer to a procedure, a manufacturing method, a machine, appliance or product. However, there can be no patenting of discoveries, scientific theories or mathematical methods, economic-commercial methods, computer programs, animal breeds, or vegetable varieties and inventions that are contrary to public order or decency. Also, a number of conditions have to be met to obtain a patent: the invention should be new, it should result from an inventive activity and it should have an industrial application.

The procedure for obtaining a patent is as follows. Firstly, an application should be filed with this documentation: an application form, a description of the invention, one or more claims (which define the subject of the invention for which the patent is being applied), drawings (if necessary) and a summary. The application can be filed in person or via a representative or an Industrial Property Agency in one of the following places: the Spanish Patents and Trademarks Office (OEPM); the registry office of any government body, of the national general government, of any of the governments of the autonomous regions or of those local government bodies that have signed the relevant agreement; post offices; and Spain's diplomatic representations or consular offices abroad.

At a later date, the applicant should ask the OEPM to write a Technical Status Report (IET), with the aim of establishing whether the invention is new and involves inventive activity. After a period of about two years, the OEPM will decide whether to grant the patent, and it will be announced in the Industrial Property Official Bulletin (BOPI).

The fees for obtaining a patent are approximately 601 euros (this figure includes payment for doing the IET), plus the cost of preparing the documentation required for presenting the patent application. The patent lasts for twenty years from the date the application was filed. Payment of annual maintenance fees is also required, and these increase progressively from 19.71 euros in the third year to 550.93 euros in the twentieth year.

The patent is only valid for Spain. The applicant also has a period of twelve months from the application date in which to present the application in other countries. There are other methods of obtaining protection in other countries: the national method, involving the filing of an application in each country; the European method, which has the effect of a national patent in each of the countries for which the application is made; and the international method, through which an international application provides protection for an invention in each of the countries which are party to the International Treaty (115 countries in October 2001). The European method and the international method are the responsibility of the European Patent Office (EPO) and the World Intellectual Property Organisation respectively, although the process can be carried out via the OEPM.

Since the procedures required to obtain protection for research results are costly, especially if patent applications are filed at an international level, government authorities (both those of the state and the autonomous regions) grant assistance and subsidies to help with these costs.

Intellectual Property Protection

Intellectual property is made up of personal and hereditary rights which give the author full use of and the exclusive right to exploit the work, with no restrictions other than those established in the Intellectual Property Law. In Spain, the Intellectual Property Register is the administrative mechanism for protecting the intellectual property rights of authors and other proprietors over creations of a literary, artistic or scientific nature.

The main difference between industrial and intellectual property is that the intellectual property of a literary, artistic or scientific work resides in the author by the mere fact of its creation, and so there is no obligation to be entered in the Register in order to obtain intellectual property rights. However, entry in the Register affords a qualified proof of the existence and ownership of intellectual property rights.

Intellectual property covers the following, and these may be entered in the Register: all original literary, artistic or scientific creations expressed through any tangible or intangible medium that is currently known or that may be invented in the future. Examples include:

ü      Books, brochures, forms, letters, writings, speeches and addresses, lectures, forensic reports, expert explanations and any other works of a similar nature.

ü      Musical compositions, with or without lyrics.

ü      Dramatic works and musical dramas, choreographies, pantomimes and theatrical works in general.

ü      Cinematic works and any other audio-visual works.

ü      Sculptures and paintings, drawings, illustrations, lithography and graphic novels, comic books, and any sketches or mock-ups and other plastic works, whether or not they are applied.

ü      Projects, plans, models and designs for architectural or engineering works.

ü      Graphics, maps and designs related to topography, geography and science in general.

ü      Photographic works, and works expressed by procedures analogous to photography.

ü      Computer programs.

ü      Translations and adaptations.

ü      Reviews, updates and annotations.

ü      Compendia, summaries or abstracts.

ü      Musical arrangements.

ü      Collections of works by others, of data or of other independent elements such as anthologies and databases.

However, the following may not be entered:

§        The ideas, procedures, systems, working methods or mathematical concepts themselves.

§        Legal or regulative provisions, resolutions of judicial bodies, reports by public institutions, and official translations of such texts.

With regard to the procedure for entry into the Intellectual Property Register, the application is filed in any provincial office of the Intellectual Property General Register, in Spain's diplomatic representations or consular offices abroad or in the other ways described in Law 30/1992, dated 26 November, relating to the legal system of the government authorities and of the public government procedure.

When filing the application, the applicant should present: the application form in duplicate, the specimen that identifies the work, performance or production, the complementary documentation and the receipt for the payment of the fee. The basic fee is approximately 11.04 euros.

The entry comes into force from the date that the application is filed. The rights to exploit the work will last for the author's lifetime and seventy years after the author's death or announcement of death.

Industrial Secret

An industrial secret is when information is regarded as secret or confidential, without it being generally known by other parties. An industrial secret is not registered with any institution, as is industrial or intellectual property, although the information may be described on paper and this deposited with a lawyer as proof of its existence. However, an industrial secret runs the risk that another person may arrive at the same result and exploit it and even apply for a patent.

Disclosure of an industrial secret constitutes an act of unfair competition, as covered by article 13 of Law 3/91 regarding Unfair Competition, relating to the Disclosure of Secrets: "Disclosure or exploitation, without the proprietor's authorisation, of industrial secrets or of any other type of business secret by those who have had lawful access, but with a duty of discretion, or unlawful access, as a result of any of the behaviours described in the following section or in article 14, is to be considered unfair. The acquisition of secrets through espionage or any similar process will also be considered unfair. The prosecution of the violations of secrets covered in the previous sections does not require the presence of the requirements set down in article 2. However, there will be a requirement for the violation to have been made with the intention of gaining advantage, for the discloser or for a third party, or of harming the proprietor of the secret."

At an international level, the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) refers to industrial secrets in this way: "Natural persons or legal entities will have the opportunity to prevent information that is within their lawful control from being disclosed to third parties or being acquired or used by third parties without their consent in a way which is contrary to honest commercial use, to the extent that this information: a) Is secret in the sense that it is not, as a body or in the configuration and makeup of its components, generally known or easily accessible to persons within the circles where the type of information in question is normally used; b) Has a commercial value due to its secret nature; c) Has been the subject of reasonable measures taken by the person who lawfully controls it that, in the circumstances, are required to keep it secret.