By this title, I am referring to an Industrial Property concept called “reinstatement of rights” and I will comment a recent case in our favor, decided by the judgment rendered on April 24, 2026 by the 32 nd Section of the Provincial Court of Madrid (which is the judicial body that has replaced the former Contentious-Administrative Court) and is composed of Judges with proven expertise in Industrial Property.
In very simple terms, the reinstatement of rights means that you are “forgiven” when you make a mistake and that the right you lost as a result of that mistake is reinstated.
However, this “forgiveness” must occur under specific conditions. The error must have been committed within a company that has an adequate organizational structure for managing deadlines, and it must be an isolated incident involving no negligence. In short, there must have been an occasional and isolated failure within an effective, rational, efficient and proven management system that has been in operation for some time, and there has been no negligence.
The reinstatement of rights applies to many Industrial Property proceedings, with exceptions that I will
not address here. It is particularly relevant in cases involving the validation of European patents, being the context of our case, and where the aforementioned ruling sets forth the considerations summarized below.
The plaintiff argued before the Spanish Patent and Trademark Office that the failure to meet the deadline for filing the patent translation was due to an isolated and unusual error in the computer system for the validation application, at a time when the company was in the process of organizing its remote working system (a hybrid model combining remote and in-person work) and gradually implementing a computerized workflow management tool, the rollout of which was disrupted at that time by the situation caused by the COVID-19 pandemic.
The Spanish Patent and Trademark Office processed the application accordingly and ultimately rejected the request, finding that by October 2022, the company had had sufficient time following the pandemic (which had occurred some time earlier) in order to develop the computer system for patent validations and that the control by the responsible persons in charge of the company should had been greater.
An appeal was filed against this decision, arguing that the company had implemented a rational, efficient and proven system, and that what occurred was simply an isolated error that could not be considered negligence. The computer system functioned perfectly for the publication of the translation of the European patent. However, when it became necessary to issue a new publication as a result of an opposition filed by a third party (which led to amendments to the claims), a computer error occurred.
In ruling on the appeal, the Spanish Patent and Trademark Office upheld its initial decision. It admitted that the computer system was not fully developed, but rather that its implementation was being carried out progressively and in phases; and it also believed that the company had chosen to wait until all employees were back in the office, following the interference caused by the COVID-19 pandemic, before launching the workflows for European patent validation requests.
However, the Spanish Patent and Trademark Office considered that, even assuming a computer error might have occurred, it did not seem diligent that there was no control, at least by the person entering the order and even by other staff responsible for supervising such files, especially given that this kind of Industrial Property right can be modified or limited as a result of opposition proceedings, limitation proceedings, or even a Court ruling. The Spanish Patent and Trademark Office found that the European patent validation team did not act with due diligence, since the case in question was not adequately monitored, despite being the first revalidation case, and it found that the documentation submitted in the initial (validation) file was not reviewed, which would have allowed for the creation of a new order and the submission of the new translation of the European patent in its amended form following the opposition proceedings within the established deadline.
Bearing in mind that the implementation of the computer program was taking place gradually and that, at that time, all employees were already working on-site, greater coordination and more rigorous control of the cases processed on the platform should have been required.
For its part, the plaintiff maintains that the failure of the timely validation of the European patent was the result of an exceptional computer glitch, which caused the revalidation order to be incorrectly identified as an extension of the original validation order made. This was the first case of an error detected in the computer system following the transition from a paper-based process to a computer-based workflow system. The ruling highlights that this experience has led to corrections being made to the system through the creation of an exception report to ensure that the re-granting of orders already in the computer system are always processed as new orders.
Regarding the requirements and purpose of the reinstatement of rights, the Provincial Court states that its purpose is to allow the holder of such rights to recover them when, despite having acted with due diligence, an event occurred that prevented the holder from meeting the deadline for taking an action within the administrative procedure (payment of fees, etc.), and this resulted in the loss of their right. Obviously, this is a possibility that must be understood as exceptional in nature and interpreted strictly, in order to safeguard the principle of legal certainty.
The ruling states that the dispute centers on the subjective requirement, namely whether the applicant for reinstatement or the person authorized to act on their behalf, acted with the diligence required by the circumstances of their case. The discussion must therefore focus on whether the person who assumed responsibility for handling the relevant application and who was to act as the point of contact for the interested party in carrying out the registration procedures on behalf of the applicant, was employing control mechanisms that were reasonably satisfactory for carrying out the necessary procedures, despite which a completely isolated incident may have occurred that eluded
that monitoring system.
The Provincial Court considers that this is not a case of indifference or a failure to act in a timely and diligent manner, but rather that simply, in a completely unintentional manner and as a result of an unforeseen malfunction of the automated management system, the request from the client who held a European patent and wished to evalidate it in Spain within the applicable time limit, was not processed as expected.
We see, therefore, that according to the Provincial Court, the matter cannot be diverted (as sought by the Spanish Patent and Trademark Office) to a finding of a failure to review that would give rise to the finding of negligence in the proceedings; rather, it considers this to be a mere computer error that falls within the scope of reinstatement of rights, as the requirements for such reinstatement have been met.
This ruling is highly significant, as the Spanish Patent and Trademark Office has consistently offered contrary interpretations regarding the reinstatement of rights: initially taking a fully permissive stance regarding events that occurred during the COVID-19 pandemic, subsequently imposing stricter requirements, and now practically declaring that, accordingly, any human error constitutes negligence.
In the most recent decisions issued by the Spanish Patent and Trademark Office on this issue, it has in fact come to consider that any human error is, in and of itself, negligent. I believe that the specific case must be considered to determine whether the requirements for the reinstatement of rights are met: a one-time, isolated error in an effective, rational, efficient and proven management system that has been in functioning for some time and where there is no negligence. It is up to the applicant for reinstatement to prove due diligence in their actions (although there can be no resumption of negligence); however, if negligence is found, it must be thoroughly substantiated by the resolving body. In short, “to err is human” unless the action in question is totally negligent.