The Risk of Not Properly Registering a Patent

3 April, 2025
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Intellectual property
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Lucas Charnet


You have a great idea—an invention that you believe could become a revolutionary product. You decide to register it on an online platform and start presenting it to different companies, hoping to commercialize it. However, after some time, you discover that one of these companies has started selling your product without prior notice or compensation. Can you make a claim? Have you lost all the effort and financial resources you invested forever? In today’s article, we explain everything you need to know to properly protect your inventions.

A Real Case: The Backpack with an Innovative Lock

In 2021, an entrepreneur and a small company designed a backpack with an innovative locking system. To protect their invention, they registered it on an online platform, mistakenly believing that this granted them exclusive rights over their design. Later, they presented the backpack to major clothing and accessory brands, hoping to find a company interested in commercializing it.

Years later, they discovered that one of the companies to whom they had shown their invention was selling a nearly identical model. Desperate, they came to our law firm to find out if they could claim any rights over their invention.

Unfortunately, registering on an online platform only provides proof of authorship but does not grant exclusive rights over a patent. As we have mentioned on multiple occasions in this blog, unlike copyright law—where registration is not constitutive of the right and the creation of the work itself is sufficient—in the case of inventions, in Spain, for an invention to have legal protection and be enforceable against third parties, it must be registered with the Spanish Patent and Trademark Office (OEPM). Since they had not done so, they lost the opportunity to make any claims.

How to Register a Patent in Spain?

The patent registration process in Spain is crucial to ensuring the legal protection of an invention. Below, we briefly explain the essential steps to do it correctly:

1. Verification of Novelty and Inventive Activity: Before starting the process, it is essential to ensure that the invention is new and has not been previously disclosed. This means it must not have been presented to the average consumer before. Additionally, it must involve a significant technical advancement compared to the current state of the art. To verify this, it is recommended to conduct a prior art search in national and international patent databases.
2. Preparation of Documentation: A detailed descriptive report must be prepared, explaining what the invention consists of, its advantages, and how it differs from what already exists. Technical drawings and claims that define the scope of the requested protection must also be included.
3. Filing the Application with the OEPM: The application must be submitted to the Spanish Patent and Trademark Office (OEPM), either in person or online. At this stage, the corresponding initial fees must be paid.
4. Formal Examination and Publication: The OEPM reviews whether the submitted documentation meets the legal and technical requirements. If everything is in order, the application is published in the Official Industrial Property Bulletin (BOPI), allowing third parties to file oppositions if they believe the invention does not meet the patentability requirements.
5. Substantive Examination and Granting: If there are no objections, or if they are resolved favorably, a technical examination of the invention is conducted. If it meets the requirements, the OEPM grants the patent, providing the owner with exclusive rights over the invention for up to 20 years, subject to the payment of annual maintenance fees.

Alternatives to Patents: Utility Models

For inventions with a lower degree of innovation that do not meet the requirements for a patent, there is the option of registering a utility model. This legal tool allows for the protection of technical improvements in existing products or processes in a simpler and faster manner. Unlike a patent, a utility model does not require such a rigorous substantive examination, which reduces costs and speeds up the granting process. However, its scope of protection is more limited, and its duration is shorter, granting exclusive rights for a maximum of 10 years. This type of protection is ideal for functional innovations that provide practical improvements to already known devices, tools, or procedures.

Who Can Register a Patent?

The patent registration process in Spain is open to both individuals and legal entities. This means that any individual inventor, company, university, or research institution can file a patent application with the Spanish Patent and Trademark Office (OEPM). However, the right to register a patent does not always automatically belong to the inventor.

In cases where inventions are developed within an employment relationship, it is crucial to analyze the contractual relationship between the inventor and their employer. If the invention was created as part of specific duties within a company or institution, ownership may belong to the employer unless otherwise stated in the contract. Likewise, in research projects funded by public or private entities, it is advisable to define the distribution of rights over the patent beforehand through agreements or specific contractual clauses.

Additionally, when multiple people contribute to the development of an invention, they may choose to file the patent application jointly. In such cases, co-ownership of the patent must be properly regulated to avoid future conflicts regarding its exploitation and management.

Ultimately, understanding the rights and obligations related to the ownership of an invention is essential to ensure effective protection and prevent legal disputes in the future.

Costs and Maintenance of a Patent

Registering a patent involves a series of costs that should be considered from the outset. These include application fees, which vary depending on the complexity of the invention and the type of protection sought, as well as the expenses associated with the technical examination conducted by the Spanish Patent and Trademark Office (OEPM). This examination assesses whether the invention meets the requirements of novelty, inventive step, and industrial applicability.

Furthermore, once a patent is granted, it is essential to pay annual maintenance fees to keep it in force. These fees increase over time, which encourages patent holders to commercially exploit the invention or license it to third parties to make the investment profitable.

Although these costs may seem high, the protection offered by a patent is invaluable. Not only does it guarantee exclusivity in the exploitation of the invention for up to 20 years, but it also allows the patent holder to take legal action against any unauthorized use by third parties. For this reason, it is crucial to strategically assess the viability of the investment based on the commercial potential of the invention and the long-term benefits it may bring.

Conclusion

The case of the backpack with an innovative lock highlights the importance of properly registering a patent. Simply documenting the authorship of an invention is not enough; it is essential to register it with the OEPM to obtain exclusive rights and prevent misappropriation by third parties.

If you have an invention that you want to protect, do not hesitate to seek advice from an industrial property specialist. At MES Advocats, we offer a comprehensive service for the registration and management of patents, ensuring that your effort and creativity are properly protected. For more information, contact us at www.mesadvocats.com.

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Oficina Española de Patentes y Marcas (OEPM)Industrial PropertyProtección de InvencionesProtección LegalRegistro de Patentes

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