The Spanish Supreme Court gets serious on patents

Abstract

Luis Fernández-Novoa, José Antonio Sanmartín and Álvaro Velázquez are all lawyers in the Madrid office of European intellectual property law firm Hoyng Monegier. Bringing your patent case before the Spanish Supreme Court has long been practically impossible. From 2008 to 2010, only four cassation cases concerned a patent issue. However, this anti-patent landscape miraculously changed in 2011, the year in which six patent cases made it to Spain's highest court. This article will explain both why the Supreme Court, before 2011, accepted so few patent cases, and why that number suddenly increased drastically. Moreover, it provides a critical and comprehensive evaluation of the most important cassational judgments rendered in 2011 and 2012 in the field of patent law. The Spanish Supreme Court has ruled, inter alia, on matters such as the relevance of the EPO guidelines and Boards of Appeal decisions for the assessment of patentability; how to approach infringement by equivalents; the long-standing debate on the patentability of pharmaceutical products; proving damages in patent infringement cases; and the date on which a European patent shall take effect in Spain.