Patents vs Utility Models
The fact that a patent is granted does not necessarily mean that it is valid. Third parties can always urge its total or partial nullity in court.
Moreover, a patent is not a manufacturing license (it might happen, for example, that a pharmaceutical product is patented, but has not yet been launched on the market because it has not yet obtained the corresponding authorization from the health authorities), but it should rather be seen as the right to exclude others from making, offering, introducing into trade, or using its object.
The Utility Models
In Spain, it is possible to obtain, in place of a patent, a utility model. These differentiate from patents in the following ways:
- Utility models require less novelty (it is sufficient that the invention is new in Spain – but the documents for foreign patents serve in principle to destroy the novelty of the invention since they are accessible to the public in Spain, such as entering the OEPM databases) and inventive activity (it is sufficient that the invention is not very obvious to a person skilled in the subject in view of everything made public in Spain on the filing date of the utility model application).
- Only products can be object to a utility model (not procedures). In fact, utility models are defined as inventions that consist of giving an object a configuration, structure, or constitution that results in a practically significant advantage in its use or manufacture.
- The duration (10 years) is less than that of patents. They are also subject to annuity payments.
- The procedure for granting a utility model is simpler than that of a patent. After filing, (this includes the provision of a memory like with the case of patents) the application is examined as to whether it is formally correct and whether the object can be a utility model (otherwise, the examination will be suspended, where it will be possible to answer, followed by the granting or denial of the application) and, if so, the utility model application is published.
In the absence of objections within two months from the publication date, the utility model is granted with the corresponding concession rights. If there are objections, the utility model application may be granted or denied in whole or in part. The duration of the procedure is twelve months from the filing date if there are no objections, and twenty months if there are any objections (in practice, however, in the absence of objections the grant of a utility model can be obtained in less than six months).
As with the case with patents, a utility model can always be declared invalid in court for failing to meet the requirements of patentability.
Alex Zuazo
