“How to patent an idea in Spain”, “I am going to patent my trademark” … These are some of the phrases we often hear in relation to “good ideas” but, can we patent an idea? which requirements are necessary to be able to “patent”? Can we patent trademarks?

A man with a new idea is a crank until the idea succeeds.

Mark Twain, American writer and journalist.

For a better approach, let’s start by explaining what patenting means, and how the use of this word associated with trademarks is incorrect.

The common use of this word associated with trademark protection is incorrect. We already talked about it on our blog and commented that it is common to use, erroneously, this word to talk about “applying for or registering a brand”.

The sentence “I am going to patent my brand” is incorrect, the protection of a brand can never be obtained through a patent, for that it will be necessary to apply for its registration as a trademark.

So, what does it mean to patent?

The RAE, Royal Spanish Academy indicates the following regarding the word “patent”:

1. t. To grant and issue patents.
2. t. To obtain intellectual property patents.

It is closely related to the patent. Thus, we come to the next question:

What is a patent?

A patent is an invention.

Legally, a patent is a title that recognizes the exclusive right to exploit the patented invention, preventing others from manufacturing, selling or using it without the owner’s consent.

A patent prevents an invention from being copied, protects it against third-parties and grants its owner the monopoly for its commercialization for a legally established period of time, in order to promote innovation.

Is any invention patentable? How to Patent an Idea in Spain?

1. In order for an invention to obtain a patent, it has to meet the following 3 requirements:

1) It must be a new invention worldwide.

2) It must involve an inventive activity (not as obvious as it seems).

3) The invention must be susceptible of industrial application

How long does a patent last?

In general terms, the patent guarantees the monopoly of the patented invention, in the market, for 20 years from its application.

Patent Vs Utility Model

In addition to patents, there are other ways to protect our inventions, such as utility models. Known as the “younger siblings” of patents, utility models involve lower costs and more accessible requirements. The licensing process and terms of protection are also shorter compared to patents.

Many inventions that do not meet the requirements for patenting find an alternative to protection in utility models.

The most significant differences between patents and utility models are:

• Both are inventions, but their term of protection is different. The exclusive right for patents is 20 years, while for utility models it is 10 years.
• The inventive activity requirement is less stringent for obtaining a utility model.
• A utility model gives “utility” precisely to something already created, an improvement.
• Utility models do not exist in all countries, while patents are considered worldwide.

Some examples of well-known patents and utility models:

Algunos ejemplos de patentes y modelos de utilidad muy conocidos:

Conclusions:

After this brief approach to the world of patents we can summarize the following ideas:

1. Trademarks are not patented; inventions are patented if they meet the stringent requirements for it.
2. Patents and utility models share the same requirements for obtaining them, but they differ in terms of protection periods, procedures, costs, excluded categories and purpose.
3. What fails to be a patent could be a utility model, but not vice versa. The requirements are more rigorous.

Finally, if you have reached this point and you have realized that what you need is to register your trademark and to find the different options you have to do so… do not hesitate and contact us!