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Viability of Patent Insurance in Spain

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Viability of Patent Insurance in Spain Instituto de Ciencias del Seguro VIABILITY OF PATENT INSURANCE IN SPAIN Elena F. Pérez Carrillo Frank Cuypers © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE The FUNDACIÓN MAPFRE is not responsible for the content of this study, and publication should not be construed to imply any agreement with or support for the views of the author or authors. Copying or reproduction of this work without the written consent of the author(s) is prohibited. © 2013, FUNDACIÓN MAPFRE Paseo de Recoletos 23 28004 Madrid (España) English translation: Russell Sacks www.fundacionmapfre.org/cienciasdelseguro ISBN: 978-84-9844-416-2 Depósito Legal: M-24609-2013 Printed by DiScript Preimpresión, S. L. © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE PRESENTATION Since 1975 the FUNDACIÓN MAPFRE has involved itself in activities serving the general interests of society in different areas of business and culture along with activities aimed at improving the economic and social conditions of the least advantaged members and sectors of society. Within this framework, the FUNDACIÓN MAPFRE’s Institute of Insurance Science promotes and undertakes educational and research activities in the fields of insurance and risk management. In the area of education, its activities include specialized, post-graduate academic training carried out in association with the Pontifical University of Salamanca and courses and seminars for professionals held in Spain and Latin America. These activities have been expanded into other geographic regions thanks to cooperation with a series of institutions in Spain and other countries and an Internet training programme. The Institute offers grants for research in risk and insurance science and operates a specialized insurance and risk management Documentation Centre as support for its activities. The Institute routinely sponsors and draws up reports and publishes books dealing with insurance and risk management to improve our understanding of these fields. Some are intended as reference materials for those starting out in the study or practice of insurance affairs, while others are intended as information sources for undertaking research into specialized issues in greater depth. One of these activities is the publication of this volume, the outcome of research carried out by Drs. Pérez Carrillo and Cuypers in 2011 and 2012, under the guidance of José Antonio Aventín Arroyo. For some years now our activities have been carried on primarily over the Internet, to allow users from all over the world to access our materials themselves quickly and easily via the latest generation web devices at www.fundacionmapfre.org\cienciasdelseguro V © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE Elena F. Pérez Carrillo is Secretary of the Board of the Centro de Responsabilidad Social, Gobierno Corporativo y Protección del Inversor [Centre for Social Responsibility, Corporate Government, and Investor Protection] and Technical Director of the Centro de Estudios y Documentación Europeos [Centre for European Study and Documentation], both at the University of Santiago de Compostela. She took her degree at the University of Valladolid and earned her doctorate in law at the University of Santiago de Compostela, with additional study at a number of universities in Europe: Oxford, London, Paris Sorbonne, Strasbourg, Heidelberg, and Hamburg funded by grants from both the public and the private sectors, e.g., a grant from the Fundación Mapfre Estudios [Mapfre Study Foundation] in 1999. She has pursued her academic and professional career in the fields of insurance, corporate, industrial property, and European law from the vantage point of professor of business law, researcher, and international forensic specialist (Ariño y Asociados, Bertin Ware Solicitors). She is the author of some 70 works on topical legal issues spanning treatises, collections, and papers. Frank Cuypers is a nuclear engineer and theoretical physicist with protracted experience in research and teaching in the field of complex systems modelling. As Chief Actuary for Zurich Financial Services and a Swiss Re executive, he has gained extensive practice in actuarial engineering. Based on this experience, he formed the actuarial consultancies of KPMG and PwC in Switzerland. He has also served as Executive Director of AIPPI, the leading international ONG seeking worldwide harmonization of intellectual property. He is currently a partner in PRS, a company promoting (re)insurers, and he acts as a consultant in actuarial, risk modelling, and solvency capital matters. He has recently been appointed by FINMA, the Swiss Financial Market Supervisory Authority, to validate a range of solvency internal models. © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE For Rebeca Villalba Pérez The patent system adds the fuel of interest to the fire of genius. Abraham Lincoln © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE ACKNOWLEDGEMENTS The authors thank the FUNDACIÓN MAPFRE for giving them the opportunity to undertake and complete this study. IX © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE FOREWORD “Implicit in the nature of innovation is the mad rush to make major changes and thus be able to take great leaps. The best way for a country to move forward into a better future is for it to accept, once and for all, that only by innovating will it be able to catch up with the more prosperous countries” Joseph A. Schumpeter [T.N.: retranslated from the Spanish] One of the FUNDACIÓN MAPFRE’s main goals is to improve people’s wellbeing by undertaking action in the general interest in different fields. In times of crisis the common interest is directly related to economic growth, possible only by increasing a country’s production capacity. It is therefore necessary to foster talent and creativity with a view to expanding the spectrum of activities in an efficient manner and eliciting synergies among different sectors of society that will help to improve its standing. Hand in hand with opening up foreign markets, strategies and policies conducive to turning know-how into value can be expected to contribute the most to growth and job creation in the coming years. It follows that, in today’s climate of crisis, putting research and development to industrial use and protecting their fruits by means of intellectual property rights are to be considered essential factors for recovery. Lawsuits to defend industrial property rights, including patents, against attack or infringement are extremely costly and complicated, placing them beyond the reach of small and medium-sized enterprises (SMEs). This being the case, legal expenses insurance for patents would hold out the possibility of fostering the culture of innovation and boosting research and development, and with this in mind, the European Commission recently pointed out that legal expenses insurance schemes for intellectual property are growing more and more important, though they have not made as much progress as might reasonably be hoped for. In 2011 the FUNDACIÓN MAPFRE’s Institute of Insurance Science decided to make a further contribution in this direction by sponsoring a study analysing the viability of patent insurance in Spain. The purpose of this study was to establish whether insurance techniques might help make patenting more accessible, or to put it another way, bring greater certainty to persons who XI © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE have made a discovery or an invention so that they can protect it by means of a patent. In setting up the mandate for this study, we have had the assistance of Luis Hernando de Larramendi, Partner in the Elzaburu Firm and a Patron of the FUNDACIÓN MAPFRE, who has encouraged the project from its inception; we have also had the help of José Antonio Aventín Arroyo, Managing Director of Mapfre Empresas until December 2012, who has guided the work along and has been a beacon for the authors thanks to his deep knowledge of the insurance sector and his long business experience. Still, it is the authors, Elena Pérez Carrillo, Doctor of Law and a research fellow at the University of Santiago de Compostela, and Frank Cuypers, actuary and insurance consultant, who have produced the study the reader now has in his or her hands. It has taken them nearly two years of hard, diligent work to access all the different sources, compile all the varied information, conduct interviews at the Patent Offices of the different countries, and contact participants in the insurance business in the different national markets in order to put together the proposal formulated here: a legal expenses insurance for patents directed at innovative SMEs and lone inventors. Our thanks to all of them for their efforts and our congratulations on the outstanding quality of their work. I am sure that this study will help make patent the actual meanings of the words patent and insure in Spanish according to the Royal Academy of the Spanish Language: means of making something discernible, clear, and perceptible, in a manner free from danger, injury, and risk. Andrés Jiménez Herradón President Institute of Insurance Science FUNDACIÓN MAPFRE XII © FUNDACIÓN MAPFRE Prohibida la reproducción total o parcial de esta obra sin el permiso escrito del autor o de FUNDACIÓN MAPFRE RESEARCHERS, BOTTOMRY AND PATENT INSURANCE Seagoing trade in the Mediterranean in antiquity and Spain’s galleon trade with the Indies after their discovery were made possible by two closely related instruments designed to keep the risks of shipwreck and lost cargo at bay.
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