12.3.2 Courts specialized in industrial property
LP-1986 provided for the possibility of patent-related cases (and by extension other industrial property cases) being considered by certain first instance courts (“juzgados de primera instancia” - traditional denomination of the courts of first instance of the civil jurisdictional division). That possibility, however, never materialized in practice.
The real change took place in 2003, with an amendment to the Organic Law on the Judiciary.15 That amendment established one or more commercial courts in each province, with jurisdiction for each entire province. These new courts were assigned competence to hear cases in the first instance relating to a finite list of subject matters that included industrial property, intellectual property, fair competition and publicity. The reform also established a specialized role for the country’s Provincial Courts (second-instance courts within the civil and criminal jurisdictional divisions): that of hearing appeals against decisions by these new commercial courts. These courts began operating in January 2004.
Current patent law in Spain, LP-2015, after entering into force in 2017, carried this specialization process a step further, assigning competence for civil patent cases to specific commercial courts – those located in the autonomous community seats of the country’s High Courts of Justice – the highest courts in each of the country’s autonomous communities (except for cases subject to Supreme Court jurisdiction). The General Council of the Judiciary would previously have conferred exclusive jurisdiction for such matters to the High Courts themselves.
As a consequence of the resolutions adopted by the General Council of the Judiciary, six commercial courts in Madrid, three in Barcelona and one in Valencia have been assigned jurisdiction for civil proceedings concerning patents. There are also commercial courts for Granada, Las Palmas de Gran Canaria, La Coruña and Bilbao.
The “super-specialization” process continued in 2022 for second-instance courts, with another reform of the Organic Law on the Judiciary.16 Under this latest reform, where a Provincial Court has more than one section specialized in commercial cases, the General Council of the Judiciary must distribute competence for specific matters among the sections. Explicit provision was also made for the possibility of creating specialized sections to deal exclusively with intellectual and industrial property, fair competition and publicity.
Only the Provincial Court of Madrid has more than one section specialized in commercial cases. Under the reformed provisions, Section 32 of the Provincial Court of Madrid was assigned sole and exclusive jurisdiction for intellectual and industrial property, fair competition and publicity, the only section so specialized in Spain.
There is no such structured specialization at the Supreme Court level (First Chamber).
Another important change made by the 2022 reform was to assign jurisdiction to Provincial Court sections specialized in commercial cases for appeals against final SPTO rulings on industrial property cases, hitherto subject to administrative jurisdiction.
Courts specializing in commercial cases are composed exclusively of judges with legal rather than technical training.
To ensure that the judges selected for these specialized courts have the necessary knowledge, a selection procedure has been established to qualify successful candidates as “commercial law specialists”. Those so qualified are then given preference when judges are appointed to the specialized commercial courts. Only when there are no commercial law specialists may a non-specialized judge be appointed to these courts.
The selection process consists of exercises to test theoretical knowledge and skill in drafting opinions. Successful candidates are then offered a theoretical-practical training course conducted by the Judicial School of Spain. As an eligibility requirement for participation in this process, judges must have effectively served for at least two years.
Members of the judicial service who are not specialists but do obtain an appointment to a commercial court must participate in specific training activities as determined by the General Council of the Judiciary (an online theoretical course and a theoretical-practical internship with a commercial court).