Tag Archives: Spain

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Spain’s New Patent Act: The Key Points

On July 25th, the Spanish Official State Gazette (BOE) published the new Patent Act (“PA”) (“Ley 24/2015, de 24 de julio, de Patentes”), which will substitute the current legislation on April 1st, 2017. The main aim of the new Act is to simplify the patent protection of innovation and promote legal certainty by establishing a single method of patent granting, which requires a prior examination of novelty and inventive step.

The most evident change concerns the remodeling of the patent granting procedure. The new PA approaches the harmonization, as proposed in the Patent Law Treaty, by simplifying the requirements to obtain the filing date of the patent application. These requirements include the obligation of informing about the geographical origin or the source of origin of the biological material to which the invention refers. In order to avoid discrimination towards individuals who decide to file the application in Spain first, the Act introduces a major change by recognizing the internal priority, which will allow them to subsequently file improved or amended applications.

With regard to the grant procedure, the PA makes the most visible change by adopting the procedure integrating a preliminary or substantive examination of novelty and inventive step (non-obviousness) as the single system for granting patents. The conclusions drawn by the examiner upon technical evaluation will be reflected in a so-called “written opinion” and the interested party will be able to respond to the observations and objections that the examiner may have had and/or to continue the proceeding, carrying out a substantive. The substantive examination should prove whether the patent application and the invention fulfil the formal, technical and patentability requirements described on the PA. In order to accelerate the procedure, the new PA substitutes the former system of pre-registration opposition with a new system of post-registration opposition. However, the new procedure still allows for the observations of third parties, who will be able to make any observations regarding the patentability of the invention once the application is published. This new system provides the applicant with the necessary information to decide whether or not to amend or maintain the application and /or to patent abroad within the period of priority.

Although the changes on the application procedure are the most noticeable, the PA also modifies other aspects concerning patents, such as:

  • Regarding European Patents, the PA introduces the amendments adopted by the Act revising the European Patent Convention, by admitting the possibility of patenting known substances or compositions for their use as medicine or for new therapeutic applications.
  • With regard to claims for infringement of patent rights, the PA introduces coercive compensations to guarantee the cease of the infringing activity.
  • The new PA will allow the partial invalidity of a patent claim during the invalidity proceedings. Besides, the patentee can revoke or limit the scope of the patent by modifying its claims at any time during the patent’s legal lifetime.
  • A special feature is introduced concerning the procedural rules. The new PA adjusts the procedural deadlines due to the complexity of the patent disputes, the extraordinary importance of the expert opinions and the need of having them at one’s disposal and making use of them in order to guarantee the right of defense of the defendant. The general deadline for filing the statement of defense, formulate a counterclaim and or answer the latter, will be increased from the current twenty days to two months.

The new PA does not forget patent’s little sister -utility models- and adjusts its regulation aiming to adapt it to the present and to assimilate it to their situation in other European countries. The first relevant change is the levelling of the relevant State of the Art to the one required for patents, i.e. the innovation required for the concession of a utility model will be the same as the required for patents. Another relevant change is that the range of what can be protected as a utility model will be increased and, therefore, will include chemical products, substances or compositions, except for those involving biological materials and pharmaceutical substances and compositions. Finally, since utility models are granted without examination, owners aiming to enforce a utility model under the new law will have to provide for a search report on the State of the Art.

 

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Spanish tax reform: principal measures applicable to non-residents in Spain and entities resident in Spain with an international component

After six months of debate and following modifications of the government’s tax reform proposals, on November 27th, 2014, the Spanish Parliament passed draft laws amending the legislation governing personal income tax for residents and non-residents, corporate income tax and value added tax. The modified legislation will come into force on January 1st, 2015.

Under the new regime of personal income tax for residents and non-residents, the sale of properties or the change of residence in 2015 will have tax consequences which may be taken into consideration.

Therefore, in relation to capital gains obtained through the sale of properties in 2015, the update coefficients will not be applied to the acquisition value, which means that the amount of capital gains, and as a consequence, the amount of tax due, will be higher in most cases.

Until December 31st 2014, taxpayers in Spain can apply specific coefficients (the so-called “coeficientes de abatimiento”) in relation to properties sold during this year which were acquired before December 31st 1994, so that a part of the capital gain will be exempt from income tax. However, with effect from January 1st, 2015, Spanish law will establish a limit on the application of this coefficient insofar as it may be applied if the transfer value of the property is less than 400,000 euros. This measure will have a considerable impact on the tax burden of taxpayers in Spain.

Change of residence during the year 2015 will also have tax consequences if the taxpayer (who must have been a taxpayer in Spain, at least, during the last 10 years) owns shares/has participation of a market value higher than 4,000,000 euros or if the taxpayer holds more than 25% of the shares in an entity having a market value higher than 1,000,000 euros.

This measure, called “Exit Tax”, means that due to the change of residence, the Spanish Tax Authorities will consider that a capital gain has been obtained, so the taxpayer must include this in the Income Tax Declaration and pay the corresponding taxes. If the change of residence arises from a secondment due to professional reasons and the taxpayer has been moved to a State which has a Double Taxation Agreement with Spain, payment of the income tax corresponding to the capital gain may be deferred.

Under the new regime of corporate income tax, a matter of relevance is the tax exemption of dividends and income resulting from the transfer of shares, in cases where the taxpayer has a participation in the non-resident entity with an acquisition value exceeding 20 million euros. The application of this tax exemption also requires that the non-resident entity has paid in the State of source a similar tax at a minimum tax rate of 10%.

Likewise, in order to promote international fiscal transparency, the Spanish tax reform obliges the taxpayer to declare all income obtained by a non-resident entity if this entity does not fulfill the requirement of organization with personal and material resources. The aim of this measure is to attract those passive incomes to Spain so that they can be taxed in Spanish territory.