An International Guide to
Patent Case Management for Judges

12.10.1 Ordinary appeals

Ordinary appeals¹²⁴ are those for which the law does not specify what grounds must be invoked, only that the judgment being appealed has adversely affected the appellant.

Spain applies a “limited” appeal system that does not give rise to an entirely new trial in the second instance. Adjudication in courts of appeal is restricted to a review of proceedings and judgments in the first instance, based only on the same elements considered by the lower courts concerned.

This means that the parties may not alter their claims or arguments on appeal. Nor, with certain exceptions, may they introduce new facts or evidence.

Among the exceptions, appellants may allege new relevant facts occurring:

• after the start of the time period allowed for sentencing by the lower court; or

• before then if the appellant can prove that they only learned of the facts later.

On the other hand, the law allows the following forms of new evidence to be submitted in the second instance:

• Documents in any of the following cases, that could not be filed in the first instance:

  • when dated subsequent to the claim or the response or the preparatory hearing;

  • when dated subsequent to the claim or the response or the preparatory hearing, and the party shows that he was unaware of their existence before then;

  • when it was not possible to obtain the documents owing to reasons not attributable to the party;

• Evidence unduly rejected in the first instance;

• Evidence admitted in the first instance that could not be taken for reasons not imputable to the applicant;

• Evidence relating to facts relevant to the decision on the case as referred to in the preceding paragraph.

An ordinary appeal represents a full review in the sense that the appeals court has the authority to review everything done by the lower court judge to verify consistency with procedural rules and substantive provisions applicable to the case. The appeals court may thus review the lower court’s assessment of the evidence and the factual and legal analysis underlying its decision.

Without prejudice to the foregoing, appeals courts are also subject to limits:

• they may not enter into lower court rulings not contested by the appellants (tantum devolutum quantum apellatum); and

• they may not worsen the appellant’s situation by their judgment on their appeal (reformatio in peius), but may do so in response to an appeal by the opposing party.

In cases where the ordinary appeal is based on a breach of procedural rules and safeguards there are different possibilities:

• If the breach (inconsistency, for example) was committed by the lower court in issuing its judgment, the appeals court may quash the judgment and then resolve the questions in dispute.

• If the breach occurred prior to the judgment, so as to invalidate the proceedings, the appeals court declares the proceedings invalid as from that point and remands the case to the lower court to complete them correctly and issue a new judgment (which will also be subject to ordinary appeal).

• If the breach occurred prior to the judgment and is curable, the appeals court allows time for the flaw to be corrected and then issues a judgment on the merits of the case.