Mexican Intellectual Property Information: Opposition to the Grant of Patents?

August 17, 2010
Mexican Intellectual Property Information: Opposition to the Grant of Patents?

According with the provisions of Mexico’s Industrial Property Law (LPI), inventions are patentable if: 1) they are the result of acreative activity; 2) have an industrial application; 3) and, are new. Five exceptions to such provision are set forth in Article 16 of theLPI. Additionally, Article 19 of the LPI provides cases for which inventions cannot be considered for registration. Similarly,legislation in this area provides that once a patent application is filed with the Mexican Institute of Industrial Property (“InstitutoMexicano de la Propiedad Industrial” or “IMPI”) an administrative review must be carried out. Such administrative review basicallyconsists of a formal examination of the filed application documents, which is followed by the publication of the patent application inthe Official Gazette of the IMPI, usually within 18 months from the filing date (such publication can occur before such 18-monthperiod upon request to the IMPI). This has been the normal patent registration process for a long time. As of last June, however, adecree was published in which several articles were added to the LPI. The highlight of such decree, among others, is the new Article52a, which states that within six months, counted from the date of publication of any patent application published in the OfficialGazette, the IMPI may receive public comment concerning the application’s compliance with the provisions set forth in Articles 16and 19 of the LPI (conditions for obtaining a patent on inventions that are considered patentable). Comments that the IMPI receivespursuant to Article 52a do not mandate the IMPI to rule in a certain way. Nevertheless, this is the first time that Mexico considers thepossibility of allowing an interested third party to submit some sort of “opposition” to the granting of a patent. This may be animportant step (and with time these “oppositions” may occur more often) that could spread to other areas of industrial property,including trademark registrations, as in many other countries.

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