Unprotected for not knowing English

Everyone knows that innovation is necessary. But so is protecting its results. This is the basic concept of the patent, a licence providing the exclusive right to exploit an invention for 20 years. It is a process that Catalan companies can do on three different levels: Spanish, European and global. Getting a patent requires a real financial and bureaucratic effort that is often exasperating, but one that the European Commission (CE) is trying to simplify with a unitary patent. Until now, European patents (EPO) have had to be validated in each country. The unitary patent will simplify this process, saving time and money while providing more legal protection. According to CE estimates, a company will be able to protect its technology for 10 years for less than 5,000 euros in a territory that covers 26 states, something that would now cost 30,000 euros. So, what is the problem for Catalan companies? Spain does not want to join because processing the European unitary patent does not include Spanish as a language option.

Ready to come into effect

Some 26 EU countries (all of them except Spain and Croatia) have agreed on this system, which comes into effect four months after at least 13 states ratified the setting up of its ad hoc court (Unified Patent Court). That has only just taken place. In August, Estonia and Lithuania were the 13th and 14th countries to announce ratification. The last stage for the activation of the European unitary patent is ratification by the three states with the most patent applications (France, which has already done so, Germany and the UK). EC sources take it for granted that the unitary patent will be a reality by the beginning of 2018. Thus, the Catalan companies included in this patent system when it comes into effect will see their inventions protected in all states... except for Catalonia and, of course, Spain.

“Spanish-speaking countries barely make up even 1% of international patent applications (PCT). There is no argument for including Spanish among the unitary patent languages,” says Gian-Lluís Ribechini, president of the Business Management Commission of Catalonia’s College of Industrial Engineers. His comments come during a roundtable debate organised by the College of Economists, aimed at supporting the opportunity it would mean for Catalan SMEs to fully join the European unitary patent.

“In the knowledge economy, patenting has again become the centre of what we do,” points out the director of Strategy and Competitive Intelligence at Acció, Josep Maria Gascón. “Spanish patent applications from Catalan companies go down slightly every month, while the applications for European patents go up,” he adds to show how the country’s companies are opening up to the continental market. For Gascón, becoming part of the unitary patent “is not only cheaper, but is also an asset in attracting high value investment.”

Spain will not join because the European unitary patent does not include Spanish as a language option

Thus, the member director of Operations of the Cabier Institute, Enric Batalla, points out that while Catalonia cannot as an entity join the unitary patent, its SMEs have four option for their future inventions:

1.   Applying for the unitary patent in English. It will only be valid in the states that are considering it. A third party could take advantage of the protected technology in Spain.

2.   Applying for the Spanish patent. Protection is limited to Spain and a third party could take free advantage of the technology abroad.

3.   Applying for the Spanish and the unitary patent. An option that gives general protection but means doubling effort and expenses.

4. Applying for a European patent in English and asking for its validation as a unitary patent and as a Spanish patent (with Spanish translation); an option that also doubles costs.

Is patenting worth it?

Patents protect the invention for 20 years in exchange for making it public, and therefore stimulating innovation in the rest of the market. “When SMEs see the procedure and costs of patenting they normally decide not to go through with it,” says Pimec lawyer, Itziar Ruedas. Many end up opting for utility models, which have a shorter processing time and offer protection for just 10 years.

Gascón: "With the unitary patent, not only is the process cheaper, but it is also an asset for attracting high value investment”

“They see patenting as a system that is too expensive and complex. But also, very few are clear about what they can patent or protect,” points out Ruedas. The subject of the patent has to be new, the result of invention and it also has to have an industrial application. “Not everything can be patented,” insists Ruedas.

Patents can be applied for by individuals, companies or public bodies. “To patent in Spain you need Spanish nationality, but in Europe you do not need to be from any member state,” points out the lawyer. “The Spanish procedure is complex, and simplifying it in any way would help companies,” she says, giving the example of a “company that goes through all the steps and does not know that it has to pay the concession tax, losing the patent.”

Ruedas insists that the 20-year protection patents offer generates an “exclusivity that makes SMEs more competitive.” It thus prevents a third party from competing directly with the product, “sometimes the SMEs employees themselves end up doing it,” she warns.

Ribechini: “Philips has applied for 10,000 patents in five years and the top Catalan firm in the ranking is Doctor Esteve, with 17 in the whole of 2016”

We don’t know how to patent

Despite some successful examples in the development and management of patents, such as the Catalan firm Fractus, “Spain is Europe’s fifth largest economy but is 17th in the ranking of patents per million inhabitants,” says Ruedas, pointing out that Catalonia alone would be in 11th position. In fact, today, some 35% of the patent applications in Spain come from Catalonia (29% from SMEs and individuals).

However, this hides the fact that “we do not have a culture of patents,” says the lawyer. Ribechini concurs, pointing out that “in 2016 there were more applications from individuals than companies. There are some 3,000 a year, but only 1,000 are from companies.” In fact, among the first 100 companies in Europe in terms of applying for patents there is not a single Spanish firm. “Philips has applied for 10,000 patents in five years, while the first Catalan firm in the ranking is Doctor Esteve with 17 in the whole of 2016,” says Ribechini.