Mexican law by its nature recognizes the exclusive right of an inventor to protect inventions through patents on utility models or industrial designsgranted by the Mexican Institute of Industrial Property (Instituto Mexicano de la Propiedad Industrial or IMPI). Based on a recent problem related tothe A(H1N1) Human Influenza virus, it has been speculated that it could become possible for patent holders to grant “obligatory licenses” to thirdparties in the pharmaceutical industry in order to provide for adequate production of medication for the Mexican population. However, it is worthnoting that Mexico’s Industrial Property Law distinguishes the concept of “obligatory license” (which must be given under certain circumstances andonly in case an invention is not being exploited) from “public use licenses,” which must meet the following requirements: (i) a national security oremergency must exist, including serious illness declared as a public priority; (ii) the license is valid only during the cause that gave rise to it; (iii) thefailure to grant such a license would impede, slow or negatively impact the production, supply or distribution of satisfactory numbers of basic healthproducts or medication for the population in general; (iv) the General Council of Health (Consejo de Salubridad General) issue a correspondingdeclaration on its own initiative or at the behest of national institutions specializing in health matters; and (v) upon issuing such declaration,pharmaceutical companies may apply for concessions granting a license and that such will be granted upon a prior hearing before the IMPI at whichinterested parties must appear. At this point, we consider it relatively unlikely that any such licenses will be granted in the current situation,notwithstanding what other measures the government may be considering, and that in recent statements the government has confirmed that it hassufficient medication to confront the emergency, and that there have been no shortages of specific medications because current patent holders havebeen able to satisfactorily distribute their medications. However, it is still worth keeping in mind that Mexican law does provide mechanisms in case itbecomes necessary to proceed to grant these types of licenses, which would be temporary and would presumably provide a royalty to the owner of suchpatents given that the IMPI must, in a hearing before the parties, determine a reasonable amount for the payment of royalties to patent owners.
On May 4, 2009 Mexico’s Department of Labor and Social Welfare (Secretaria del Trabajo y Prevision Social de Mexico or STPS) published a seriesof individual and collective health and sanitary guidelines for workplaces and meeting places which must be observed during the reactivation ornormalization of their operations. The purpose of the plan is to facilitate identification and implementation of those health promotion, prevention andcontrol measures that will contribute to minimizing the effects of the influenza epidemic in the workplace. The plan is of an advisory nature and eachworkplace, according to its circumstances, should attempt to follow its terms to the greatest extent possible. The foregoing does not affect existing legalobligations in the health and safety area that apply independently of the influenza emergency and are part of Mexico’s workplace security system.Thus, the STPS recommends: 1. - On the part of employers: (i) sensitivity, flexibility and tolerance with respect to absences and tardiness in theworkplace given that many workers have schoolchildren and specifically, not to apply salary discounts for absences or tardiness; (ii) to avoid sanctionson working women who are expecting or nursing for absences, or reduce their salaries or benefits, in conformity with articles 166 and 167 of theFederal Labor Law; (iii) to provide basic personal hygiene services including hand washing with water and soap, proper ventilation, air conditioningmaintenance, natural lighting, cleaning supplies and equipment; (iv) to identify any employee who presents influenza symptoms in order to beimmediately isolated to a safe place and kept away from the rest of the workers, with the employee being taken to a medical clinic to receive medicalattention. 2. – For employees: (i) do not attend work if showing signs of influenza; (ii) do not take children to the workplace in order to avoid physicalcontact and possible contagiousness; and (iii) follow instructions and directions of employers in conformity with the provisions of the HealthDepartment. The guidelines are available at http://www.stps.gob.mx/ANEXOS/Guia_Influenza_05.pdf
The First Chamber of Mexico’s Supreme Court of Justice recently approved case decision 1A./J21/2009 under the heading “Tax Consultations. Article34 of the Fiscal Code of the Federation does not violate due process guarantees (legislation in force from January 1, 2007).” In such case decision,Mexico’s highest court held that article 34 of the Fiscal Code of the Federation, which provides that tax guidance resulting from tax consultations withMexican tax authorities is not obligatory on individual parties, and that such may serve only to reverse final resolutions of the authorities applying thecriteria contained in such guidance, which does not violate guarantees of access to justice in Mexico. The forgoing, considering that guidance resultingfrom tax consultations serves as a measure of certainty in regard to the criteria applied by the Department of Finance and Public Credit in relation toreal and concrete situations, without implying a legal deprivation of citizens’ rights when there are no elements to challenge such criteria and for acourt to adjudicate, it is thus necessary that a law affects the rights of those governed by it, which is the case when authorities apply such criteria to afinal ruling.