Recent Developments In Intellectual Property In México

The major, and most significant, recent development has been the enactment in November 2020 of the FLPIP. The FLPIP has introduced new concepts into the industrial property system such as patent term extension, damages (which can now be determined and awarded by the MPTO) the partial cancellation of trademark registrations, and conciliatory proceedings aimed at settling disputes pertaining to industrial property rights, among others. Some of these notable changes will be discussed in this chapter; however, a complete summary of the changes introduced by the FLPIP would require detailed consideration beyond the scope of this review.

Among the most notable recent changes in the otherwise traditional structure of the patent system are those resulting from a recent decision by the Mexican Supreme Court to extend the term of a valid patent, reversing all prior and failed attempts to achieve this end (albeit on the basis of legal considerations not invoked in the earlier attempts). While the decision does not compel the judiciary or the MPTO to deal with other cases in this way, it constitutes a solid precedent and may well lead to future similar decisions and ultimately compulsory jurisprudence. This decision is also significant in that it provides an option by which to extend the term of basically all existing and valid patents that are not subject to the patent term extension provisions contained in the FLPIP. Assessment on a case-by-case basis would be needed to ensure a patent meets the conditions contained in the Supreme Court decision. Patents applied for as from 5 November 2020 are subject to the FLPIP provisions. Also of relevance to intellectual property, although primarily affecting the regulatory practice for medicaments, a resolution published in the Official Gazette on 18 November 2020 following an executive order from the Secretary of Health compels Cofepris to issue market approval to pharmaceutical products manufactured abroad and to be imported to Mexico by the federal government within five days of receipt of an application containing all the required information. Aside from obvious concerns regarding, among other things, unfair competition practices and associated risks to the efficacy and security of medicaments imported under the order, it is clear that valid patents will be put at great risk of infringement as the patent linkage system is unlikely to be scrupulously applied in the fast-track market approval process conceived under this order, if at all. Notably, and contrary to what might have been expected, the executive order is not limited to importations of medicaments considered urgent because of the pandemic (i.e., vaccines). The order will apply to all medicaments, regardless of whether these are already available in the country or whether or not the government would otherwise face a shortage.

Both the Supreme Court decision and the order of the Secretary of Health warrant further serious consideration and legal assessment in the context of industrial property rights; however, the substantive analysis these matters call for is beyond the immediate scope of this chapter.

1 Carlos Pérez de la Sierra is a senior partner and Efrén del Olmo is a junior associate at Calderon &
De La Sierra.
2 Instituto Mexicano de la Propiedad Industrial (IMPI);
3 Known as T-MEC, USMCA and CUSMA in Mexico, the United States and Canada respectively.
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