In view of the recent Judgment of 29 January 2014 of the High Court of Justice of Madrid we can say that there are second chances in patent proceedings, but must be carried out in the same day in which the decision informing that the term has elapsed has been notified.
The Court finds that it is applicable to the patent prosecution proceeding article 76.3 of Law 30/1992, which provides for such a possibility for the interested party, if the provisions of the Patent Act do not have anything against it.
This derives from both the generality of Law 30/1992 which applies in all administrative proceedings, as of the Second Additional Provision of the Spanish Trademark Act, due to its subsidiary character (applies to all aspects not covered by the specific law).
The case in question concerns a patent application in which the deadline to ask for the Report of the State of the Art elapsed. The Spanish Patent and Trademark Office (SPTO) decided to have withdrawn the application, pursuant to article 33.3 of the Patent Act. This decision was published in the Industrial Property Official Gazette of April 18, 2011. The applicant proceeded to the request and paid in the day of the referred Report, in accordance with Article 76.3 of the Law 30 /1992.
SPTO considered inadmissible the request for such Report since time for it had lapsed, meaning an implicit withdrawn of the application as the law acknowledges. The applicant appealed and the Court granted the appeal.
In general terms we understand this doctrine extensible to trademarks and designs, so that the range of possibilities for remedying of an applicant of an industrial property right obtains an important judicial support based on general precepts of common administrative law.