Patentes

PATENTS
PATENTABLE INVENTIONS: Novelty, Inventive step and Utility

Introduction

Intellectual property rights have a relevant role in the promotion of investigation and technical development of mankind, as well as being an important tool for the economic growth of developing countries. These means are achieved by intellectual rights as far as those who invest on investigation, or theinventors themselves, are being rewarded with the right to exclusive exploitation of their invention once it has been patented.
Investment on investigation and development is risky and expensive, therefore it is necessary the existence of a protection of inventions so that investors are guaranteed exclusiveness on the economic benefits of the invention for which they have invested. Otherwise, as riskyand uncertain the funding on investigation and development is, companies would not run the risk of failure, culminating in a prejudice to the society on the whole.

The framework regulating the requirements that an invention has to meet in order to be patentable is, at the Spanish level, the Law 11/1986 of 20th of March, whilst at a European level the main convention regarding those same issuesis The Convention on the Grant of European Patents.
The Spanish legal framework regulating patents is based on the European Patent Convention, which was enacted on October 1973, thirteen years prior to the creation of the actual Spanish law on patents. That influence becomes apparent on the articles related to patentability and its requirements, with articles from the Spanish law being areproduction of those we can find in the EPC.
For instance, the articles from the Spanish Law on Patents of Invention and Utility Models are an exact reproduction of those regarding the same subject that we can find in the Convention on the Grant of European Patents.

In the “WIPO INTELLECTUAL PROPERTY HANDBOOK: Policy, law and use” a patent is described as “a document, issued, upon application, by agovernment office (or a regional office acting for several countries), which describes an invention and creates a legal situation in which the patented invention can normally only be exploited...with the authorization of the owner of the patent.”

A conclusion we come to after reading this definition is that patents have to be requested, therefore a patent will only be conceded should theapplicant be the first one to request it for that invention.
In any case, the most important characteristic of patents that we can notice from the paragraph above is that a patent creates a legal situation in which the invention can only be exploited under the authorization; therefore the patent does not give a right to exploit, but a right to exclusivity on the abstention of economic benefits.Summing up, we could say that patents are monopolies bestowed by the State to individuals or legal entities responsible for a technical development, for a limited period of time, that can be sold, rented or transferred. However, this definition needs some clarifying, as patents do not grant the right to exploit, but the right to deny exploitation by other persons or entities. Therefore, the mostimportant right granted by a patent is the right to take action against any person or entity that exploits the patented invention without the owner's permission.

Patentability

Inventions have to meet certain requirements in order to be patentable, which are novelty, inventive step and utility, but before analyzing the meaning of those requisites, we need to narrow the concept of invention,patentability and the difference between what is considered an invention and what falls in the scope of utility model.

The Spanish Law of Patents[1], in article 4.4[2], encloses a list that excludes certain activities, products and processes from the category of invention. That list includes discoveries, scientific theories or mathematic methods, in the field of science, and knowledge and literary,...