It should be noted that Intellectual Property Rights (IPR) encompasses both industrial and intellectual property. 

In Spain, the “Industrial and Intellectual Property Rights” comprise several legal modalities, all of which have in common that they are intangible goods or intangible assets, which protect intellectual creations and which, if well managed, can add value to the innovation system and to social and economic development.

Industrial property rights protect technical productions (inventions –patents and utility models–, plant breeding, topographies of semiconductor products) and design creations (industrial designs and the modalities that protect corporate identity –trademarks and trade names–). 

All industrial property rights share a number of characteristics:

• Industrial property rights are acquired through registration.
• Industrial property rights give the holder an exclusive right or monopoly to exploit and take legal action (civil/criminal) against third parties who infringe our rights.
• Industrial property rights “expire”, they have a duration and once expired they pass into the public domain.
• Industrial property rights are limited to the territory in which the registration is made, they can only be exercised in the territories (countries) in which they are registered.
• IP can be transferred by any legal admissible means: licence, assignment, sale, pledge, mortgage.  The most common mean is usually a licence, i.e. an authorisation to use in exchange for financial remuneration.
• Certain requirements must be met in order to generate industrial property rights, which differ according to the specific right (patent, design, trademark).

Patents and utility models

There are different types of industrial property, the most important of which, due to its commercial value, is the patent. For a research result to be considered an invention and, therefore, to have the characteristics to be patentable, it must meet three requirements:

• Novelty: It must not have been made accessible to the public by a written or oral description, by use or by any other means.
• Inventive activity: That it is not obvious from the state of the art to a person skilled in the art (in the case of a utility model: if it is not very obvious from the state of the art to a person skilled in the art).
• Industrial application: That it can be manufactured or used in any kinds of industry, including agriculture.

A patent is an industrial property title granted by the State to the holder of an invention. It is granted in exchange for being made public, the right to exploit it exclusively, preventing others from manufacturing, selling or using it without his/her consent, in a specific territory for a specific period of time (20 years from the date of filing the patent application). The patent is set as a right to the holder to exclude third parties from exploiting the invention in the country in which the patent has been granted, and it will be necessary to make as many applications as countries in which one wishes to obtain these rights.

They are not patentable:

a) Discoveries, scientific theories and mathematical methods.
b) Literary, artistic or other aesthetic creations, as well as scientific works.
c) Plans, rules and methods for the pursuit of intellectual activities, for games or for economic and commercial activities, as well as computer programmes.
d)  Forms of presentation of information.

Patents and utility models are regulated in Spain by the Patent Law, 24/2015 of 24 July and the body in charge of registering and processing patents is the Spanish Patent and Trademark Office (SPTO). On its website you can find much more information about industrial property.

The utility model protects inventions with a lower inventive range than those protected by a patent. It also confers a temporary monopoly of exclusive exploitation of a technology, although this is for a period of 10 years from the date of filing the utility model application. Processes, biological material and pharmaceutical substances and compositions cannot be protected by a utility model.

Trade secret:

Any information or knowledge, including technological, scientific, industrial, commercial, organisational or financial, which meets the following conditions, shall be considered to be a trade secret:

a) It is a secret, either as a whole or in the precise configuration and assembly of its components, it is not generally known to, or readily accessible by persons within the circles in which the type of information or knowledge in question is normally used;
b) have business value, either actual or potential, precisely because it is secret; and
c) have been the subject of reasonable measures by its owner to keep it secret.

Rather than being a real system of protection against all, the trade secret is a legal obligation of certain persons involved in it, so that active measures must be taken to protect the secret.

It should be noted that every publication of results in any means, journal, congress, book, makes this information available to the general public, precluding any possibility of legal protection, as it has been published voluntarily.

The publication of results in journals and other relevant media is fundamental to a researcher's scientific career, and is not incompatible with the communication of results and their protection. It should only be considered that the publication or disclosure of a relevant research result has to take place after the protection process has been initiated. It is possible to publish and protect, but always in the right order. It is first patented and then published. The day after the patent application is filed it can be published because the novelty of the patent will be analysed until the date of the patent application. If it were published before patenting, the novelty of the result would be broken and it would therefore no longer be patentable.

It is best to send a communication of the result well in advance of dissemination and always report planned publications on reported results.

Another possible situation is that although the result is valuable, as it provides new knowledge relevant to society, it cannot be legally protected due to its characteristics. In this case, before making the result public, the option of keeping the novel part of the knowledge secret, so that this know-how is exclusive and not reproducible by others, should be considered. This option allows a return of resources to the research group as contracts or licences can be made on the basis of this know-how kept as a business secret.

Intellectual Property, which includes literary, scientific and artistic creations, computer programs, etc., differs from industrial property in that the right arises through creation, without the need to go to any registry for the birth of the right. Although registration is not required to own the right, as registration is voluntary, the Law regulates the existence of an Intellectual Property Register in which to register these types of creations. Registration constitutes qualified proof of the existence of the registered rights.

Intellectual property is regulated in Spain by Royal Legislative Decree 1/1996, of 12 April, which approves the revised text of the Intellectual Property Law, regularising, clarifying and harmonising the current legal provisions on the subject, as well as by Law 2/2019, of 1 March, which amends the revised text of the Intellectual Property Law.

Intellectual property includes all original literary, artistic or scientific creations expressed by any means or on any medium, such as:

a) Books, pamphlets, printed matter, correspondence, writings, speeches and addresses, lectures, forensic reports, lecture notes and any other works of the same nature.
b) Musical compositions, with or without lyrics.
c) Dramatic and dramatic-musical works, choreographies, pantomimes and, in general, theatrical works.
d) Cinematographic and any other audiovisual works.
e) Sculptures and works of painting, drawing, engraving, lithography and graphic cartoons, comic strips or comics, as well as essays or sketches thereof and other plastic works, whether applied or not.
f) Projects, plans, models and designs for architectural and engineering works.
g) Charts, maps and designs relating to topography, geography and, in general, to science.
h) Photographic works and works expressed by a process analogous to photography. 
i) Computer programmes.

The copyright attributed by Intellectual Property can be divided into two main blocks:

a)  Personal or moral rights: they are unwaivable and inalienable, do not lapse and accompany the author, performer or performer throughout his or her life, and his or her heirs or successors in title after the death of the author, performer or performer. These include the right to recognition of the status of author of the work or the recognition of the name of the performer on his/her performances, and the right to demand respect for the integrity of the work or performance and its non-alteration.
b) Economic rights or exploitation rights: these are rights that can be transferred by the author and be traded, thus allowing the holder to authorise or prohibit an entity or person to exploit his work, and to demand payment from the latter in exchange for the authorisation granted. They include the rights of reproduction, distribution, public communication and transformation.

The duration of these exploitation rights according to Spanish law is the life of the author plus 70 years from his/her death.

Software

In Spain and Europe, computer programmes are not considered patentable inventions, although it should be borne in mind that, despite the exclusion, under certain conditions, a computer programme can be protected by patent, so the possibility and suitability of this protection mechanism will have to be studied in each particular case. These are so-called Computer-Implemented Inventions, which involve the use of a computer, a computer network or any programmable apparatus, and necessarily require one or more technical features that are fully or partially realised by means of a computer programme. They are considered to have technical characteristics, e.g., the control of an industrial process, the processing of data representing physical quantities or an image retrieval system.

In other words, a computer programme is not excluded from patentability if, when executed on a computer, it produces a new technical effect that goes beyond the simple physical interactions between the computer programme (software) and the computer (hardware).

A result obtained with the participation of research staff from the Universitat de València must be communicated whenever this result involves new knowledge with the potential to be transferred (contract, licence, etc.) or provides added value to known knowledge.

In the case of inventions (patents and utility models) and secrecy, the result must be communicated in writing within three months of the completion of the invention and always before disclosure or submission for publication.

To submit a communication of a result, see the associated procedure.

After communicating a result

Law 14/2011 of 1 June 2011 on Science, Technology and Innovation regulates that the right to apply for titles and use the mechanisms for safeguarding industrial or intellectual property, plant varieties and business secrets appropriate for their legal protection shall belong to the entity to which such research personnel is linked, unless the said entity expressly renounces this right in writing.

Therefore, upon receipt of the signed outcome communication document together with the full presentation, the staff of the Innovation and Valorisation Section will contact the person responsible for the result to start the evaluation process and will request any additional documentation that may be necessary.

Within a maximum period of three months from the date of formal communication (signed communication and full presentation of the result), the responsible person will be informed of the UV's willingness or not to maintain its rights to protect and/or exploit the result. This period shall be interrupted for as long as additional information, such as further experimental development is required and provided.

If he/she wants to maintain his/her rights over the invention, he/she will apply for the corresponding patent or utility model, or he/she will decide to consider it as a trade secret. In the latter case, the exclusive right of use is reserved. The result of patentable research may not be published before the expiry of this period or until the patent application has been filed.

Patentability analysis and patent drafting

Once the communication of the result with the full exposition has been received, the documentation will be analysed and the interest in protecting the result of the research will be determined, as well as the most appropriate mechanism for its best protection and eventual exploitation.

If the prior assessment carried out by the Innovation and Valorisation Section considers that there is potential for patent protection, a patentability report is requested from an industrial property agency or the Spanish Patent and Trademark Office (SPTO) –in this case it is called a Patent Technological Report (TPR).

If the result of the report is favourable, it would meet the requirements for patentability, the patent application is drafted by an industrial property agency hired by the UV. During the process of the patentability report and the drafting of the patent application, the collaboration of the result’s inventor staff is necessary.

Types of patent applications 

In Spain there are three alternatives for applying for legal protection of inventions:

a)    Nationally, regulated by Law 24/2015 of 24 July, on Patents. The applicant can directly file several patent applications at the same time in all the countries in which he/she wishes to protect his/her invention. The patent application in Spain must be filed with the Spanish Patent and Trademark Office (OEPM), which is responsible for processing and granting the Spanish patent title.
b)    Through the European network, regulated by the Munich Convention on the Grant of European Patents. The European Patent Office (EPO) is responsible for processing and granting the European patent title, which produces the same effects in each of the countries for which it is granted as a national patent. 
c)    Internationally, regulated by the Patent Cooperation Treaty (PCT). The applicant may file an application under the PCT, either directly or within 12 months from the filing date of the first application, e.g. Spanish or European. 

The inventors in a patent are those who make the creative and inventive effort that gives rise to the invention. Currently, most of the activities that generate protectable knowledge are carried out in companies, universities and public research organisations.  This makes it necessary to regulate to whom and under what conditions the results of research carried out by employees in the course of their work belong.

The Spanish Patent Law, Law 24/2015 states in its article 21 that the ownership of inventions made by its research staff belongs to the University and the obligation to communicate inventions in writing to the public entity.

Thus, the ownership of the invention and the rights to its commercial exploitation are vested in the University, with the research staff entitled to a share of the profits. Research staff also have the moral right to be listed as inventors, a right that cannot be waived.

The participation of researchers in the benefits of inventions is included in section 4 of the same article 21, which regulates the inventors' right to participate in the benefits obtained by the University from these inventions. The regulation of this matter corresponds to the Governing Council of the University and is included in the different University Statutes. In the case of the Universitat de València, the participation in these benefits is set out in article 145 of its Statutes.

Article 35 of Law 14/2011 on Science, Technology and Innovation also regulates that exploitation rights, as well as those associated with transfer activities carried out on the basis of industrial or intellectual property, plant varieties or business secrets, shall correspond to the entity to which the author is linked. And the right of the authors to participate in the profits obtained by the entity.

In the event that the results have been generated in collaboration with inventors or authors not belonging to the Universitat de València, the University would not be the sole owner of the rights of the result, so the ownership would be shared with other legal entities or individuals. This shared ownership is regulated through a co-ownership agreement, which in addition to the percentages of ownership of the result, also regulates the rights and obligations of the parties, and assigns responsibilities in the process of protection and commercialisation of the result.