In accordance with the provisions of article 133 of Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations, in relation to article 26 of Law 50/1997, of 27 November, of the Government, with the aim of improving the participation of citizens in the procedure of elaboration of standards, prior to the elaboration of normative projects, a public consultation will be held, through the web portal of the competent Administration, in which the opinion of the subjects and of the most representative organizations potentially affected by the norm will be sought about:

• The problems that are intended to be solved with the initiative.
• The need and opportunity for its approval.
• The objectives of the standard.
• The possible alternative regulatory and non-regulatory solutions.

In compliance with the above and in accordance with the provisions of Order PRE/1590/2016, of October 3, by which the Agreement of the Council of Ministers of September 30, 2016, is published, by which instructions are issued to enable public participation in the process of elaboration of regulations through the web portals of the ministerial departments, a period of prior public consultation with respect to the present normative project is opened.

Grants for the promotion of patent applications and utility models granted by the Spanish Patent and Trademark Office, O.A. (SPTO) have been granted since 2006 and have been regulated by successive bases, the last ones were published in 2019 (Order ICT/677/2019, of 17 June, establishing the regulatory bases for the granting of subsidies for the promotion of patent applications and utility models by the Spanish Patent and Trademark Office, O.A. ).

The competence of the SPTO to call these subsidies is established in Article 2.4 of Law 17/1975, of May 2, on the creation of the Autonomous Agency “Industrial Property Registry” and Article 3.4 of Royal Decree 1270/1997, of July 24, which regulates the Spanish Patent and Trademark Office, which establish that within the functions of the SPTO is to “Promote initiatives and develop activities conducive to the best knowledge and the most adequate protection of industrial property, both in the national order and in all international entities and maintain direct relations with these foreign entities.”

The purpose of these subsidies is to promote actions aimed at promoting access to the national and international Industrial Property of Spanish inventors, therefore they consist of two programs, which have so far been processed jointly:

• Promotion of patent applications and utility models abroad (since 2006): International programme. It is intended for individuals, companies and private non-profit institutions with residence and tax domicile in Spain that have carried out directly or through a third party the activity subject to the grant and are holders of the patent application or utility model abroad. They include the following eligible concepts (up to 80% of the amount and 90% for SMEs and individuals):
  • Extensions of a Spanish patent or utility model to foreign offices (application, search, examination and concession).
  • Via PCT: application, search and preliminary examination, provided that the SPTO has acted as the receiving office, ISA or IPEA.
  • Via Europa: application, search, excess of claims, examination, concession, annuities and validations in other countries, provided that the SPTO has acted as a receiving office or that it has Spanish priority.

  The maximum individualised amount of the grants awarded may not exceed EUR 60,000 per applicant and call, except in the case of SMEs or natural persons, where the maximum individualised amount will be EUR 65,000.

• Promotion of Spanish patent applications and utility models (since 2010): National programme. It is intended for natural persons and SMEs with residence and tax domicile in Spain, who have carried out directly or through a third party the activity subject to the subsidy and are holders of the Spanish patent or utility model application. The grants subsidise up to 90% of the application fees and the national patent and utility model state of the art report, as well as the national patent substantive examination fees. The maximum individualized amount of the aid granted may not exceed 65,000 euros per applicant and call.

Grants from both programmes are covered by the de minimis aid scheme, in accordance with Commission Regulation (EU) 2023/2831 of 13 December 2023 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid. In accordance with the provisions of the aforementioned Regulation, the ceiling on de minimis aid that a single company can receive per Member State in a period of three years amounts to EUR 300,000.

In recent years, there have been significant changes in the context where a review of the innovation support instrument available to the SPTO is considered timely and necessary.

On the one hand, initiatives have emerged in the European context from which Spanish users can benefit. In particular, since 2022 there has been EUIPO voucher for national patent fee costs which, since 2023, have been extended to European patent fee costs and, since 2024, also include the legal consultancy costs associated with the filing of these applications. Similarly, since 2023 the European Patent Office (EPO) has applied 30% reductions in its fees for micro-entities that meet certain requirements. In addition, in 2023, changes were also made to Article 28 of the General Block Exemption Regulation concerning innovation aid for SMEs.

In addition, it should be recalled that the SPTO applies a 50% reduction to SMEs and entrepreneurs in the application rates, the third, fourth and fifth annuities of patents and utility models, and the request for a report on the state of the art and substantive examination.

The evolution of the applications of recent years shows that the overlapping of the different aid and bonus schemes can lead to confusion in SMEs, and suggests the need to rethink the scope and purpose of the subsidy mechanisms to make them more effective.

The revision of the regulations governing subsidies of the SPTO is proposed with the following objectives:

• To direct the activity of promoting the SPTO to the strategic objectives of the agency. Specifically, to promote the strategic use of industrial property and offer higher quality services that increase the satisfaction of SPTO users.
• Adapt and adjust the scope of subsidies to those activities or situations that provide a differential impulse for users of the industrial property system.
• Make efficient use of public resources, ensuring that the aid is aimed at achieving the greatest possible impact on the users who need it most.
• To adapt the aid intensity and compatibility regime with other public aid from European bodies and with the EU State aid framework.
• Adapt the eligible expenses by assessing the inclusion of all or some of the associated costs, direct and indirect, that may hinder entry into the industrial property protection system.
• Review the procedures for applying for, examining, granting and justifying subsidies, seeking to make the processing more efficient and clear, simplifying as much as possible the burdens for the interested parties.

In this context, the following questions are raised in public consultation:

• ¿considera apropiado que el mecanismo de ayudas se enmarque en el régimen de minimis o debería ampararse en el artículo 28 del RGEC?
• Do you consider appropriate and sufficient the different rates that are considered eligible in the current regulatory bases? Do you consider that any of them should be added or deleted?
• What are the advantages and disadvantages that the subsidy of other non-fixed costs, such as legal advice, translations, indirect costs, is considered to have? If they were included among the eligible costs, what maximum eligible limit do you think should be set for each type of cost? What form of reliable justification for these costs could or should be requested by the SPTO for efficient processing?
• Does it consider it appropriate for all types of companies (SMEs and non-SMEs) to be able to benefit from aid for internationalisation? Should specific or differentiated measures be adopted for SMEs and entrepreneurs similar or different to those established in the current regulatory bases? In case you do, which ones?
• Does it consider it appropriate, in the interests of greater efficiency in the use of resources, for aid to be granted solely or more intensively to applications with Spanish priority?
• Does it consider it appropriate to modulate the intensity of subsidies and/or eligible concepts according to the stage of the procedure for granting a patent or utility model in which the applicant is present?
• In view of greater efficiency in processing, do you consider it appropriate to establish fixed subsidy rates when it comes to fees or costs in countries with a lower recurrence of Spanish applicants?

In accordance with the provisions of article 9 of Law 38/2003 of November 17, General of Subsidies, the approval of regulatory bases is a prerequisite to be able to establish the corresponding procedure of granting subsidies.

The regulation that is intended to be elaborated will establish the regulatory bases for the granting of subsidies managed by the Spanish Patent and Trademark Office, O.A.

Maintain the current order of bases, without modifications or adaptations. There are no non-regulatory alternatives.

Only responses in which the sender is identified will be considered. In general, the contributions received will be considered to be open to public dissemination. The parts of the information submitted that, in the opinion of the interested party, should be treated confidentially and therefore should not be freely disseminated, should be specifically indicated in the text of the contribution itself, not considering for this purpose the generic messages of confidentiality of the information.