mexico patent assignment requirements

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WIPO - PCT Applicant's Guide MX - Mexico Mexican Institute of Industrial Property

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Patents - Filing Requirements

• Power of attorney simply signed.
• Certified copy of the priority document if claimed.
• Specification, claims, formal drawings, and abstract.
• No documents are required.
• Power of attorney signed by the assignee.
• Deed of assignment document signed by the assignor and assignee.
• Late filing of documents: not allowed.
• Merger agreement document signed by both parties, legalised by the Mexican Consulate.
• Deed of assignment document if the applicant is not the inventor.
• Certified copy of the certificate of incorporation or an extract from the commercial register reflecting the change, legalised by the Mexican Consulate.
• Power of attorney signed by the licensee.
• License agreement document signed by both parties.
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PCT NATIONAL PHASE ENTRY Mexico

The significance of obtaining a Mexican patent lies in its effectiveness for entering the Latin American market. With a large population and favorable income per capita, it may be the top choice, especially since Mexico is part of the PCT contracting states. According to WIPO, Mexico leads in patent filings among Spanish-speaking Latin American countries, making it a noteworthy reference for patent activities in the region.  The responsibility for the protection of intellectual property rights (IPR) in Mexico is distributed among various government agencies.

Mexico became a party to the Patent Cooperation Treaty (PCT) on January 1, 1995.

The major requirements and procedure to file a patent application in this jurisduction are mentioned below:

DEADLINE TO FILE PATENT APPLICATION

The designated period for submitting a patent application in Mexico under the framework of the Patent Cooperation Treaty (PCT) is 30 months from the earliest date of priority

LANGUAGE TO FILE NATIONAL PHASE APPLICATION

In Mexico, the official language for filing patent application is Spanish. If the international application is in a different official language, providing a translation into Spanish is mandatory. This ensures accuracy and regulatory compliance, which make a seamless and trouble-free progression through the patenting procedures.

EXTENSION FOR LATE ENTRY INTO NATIONAL PHASE

The deadline for submitting a patent application in the following jurisdiction for late national phase entry is non-extendable. Nevertheless, the provision of a Spanish translation can be completed within a permissible period of two months.

REQUIREMENTS FOR FILING PATENT APPLICATION

The necessary documents required for filing a national phase application include:

• Power of Attorney: In the event that the applicant does not reside in Mexico, it is necessary to designate an agent. This involves submitting a basic power of attorney, signed in the presence of two witnesses. Each witness must sign the power of attorney and specify their address.
• Assignment Deed: the following is a legal document that becomes crucial when there is a change in ownership of intellectual property rights. In cases where the applicants in the national phase and international phase are not the same, this instrument is utilized to formally transfer these rights from the original owner to the new owner.
• Verified Spanish Translation

COST EXEMPTION AVAILABLITY FOR NATIONAL PHASE FILING

Inventors, small- or medium-sized enterprises, public or private institutions of higher education, and public sector scientific or technological institutions are eligible to benefit from a reduced fee structure. Specifically, they have the option to pay 50% of the applicable fees. Additionally, they are entitled to a 50% reduction in fees associated with technical information. This provision aims to support and facilitate the engagement of these entities in the patent application process by easing the financial burden associated with intellectual property protection.

REQUEST FOR EXAMINATION

The Office diligently reviews patent applications, thoroughly examining their substance for compliance and validity. Importantly, this process does not necessitate a specific request from applicants. This approach ensures a meticulous evaluation of the patent applications without imposing additional administrative burdens on the applicants.

PATENT PROSECUTION HIGHWAY

The PPH (Patent Prosecution Highway) is a bilateral agreement recognized for expediting the processing of patent applications that have been approved by other patent offices. This agreement is established with the Mexican Institute of Industrial Property. 

This expedited process enhances efficiency and expedites the examination and approval of patents. Several agreements have been made between patent offices to encourage collaboration. These agreements allow patent applicants to ask for quicker processing in the national phase. This means that patent examiners can use work done by other participating offices. The work products may include:

• The written opinion from the International Searching Authority,
• The written opinion from the International Preliminary Examining Authority, or
• The international preliminary examination report under the PCT, given certain conditions are met

Mexican Institute of Industrial Property has established PCT-PPH agreements with the following patent offices:

• Austria (AT): Austrian Patent Office
• Canada (CA) : Canadian Intellectual Property Office
• Chile (CL): National Institute of Industrial Property 
• China (CN): China National Intellectual Property Administration 
• Europe (EP): European Patent Office
• Spanish (ES): Spanish Patent and Trademark Office
• Japan (JP): Japan Patent Office
• Singapore (SG): Intellectual Property Office of Singapore
• United States of America (USA): United States Patent and Trademark Office

RENEWAL FEE

The grant fee and renewals for the first five years must be promptly settled within two months of receiving the Notice of Allowance. Following this initial period, subsequent renewals become due every five years, specifically before the anniversary of the filing date. In the event of a delay, payments can still be made within six months after the deadline, although subject to a surcharge. This mechanism ensures timely financial obligations and offers a grace period for late payments with the necessary additional charge.

PATENT TERM

Patents in Mexico remain valid for a duration of 20 years starting from the date of filing within the country. The extension of the term is contingent upon a unique provision where only half of the elapsed time delay is considered for the extension, and this extension is limited at a maximum of 5 years.

INNOVATION INDEX

The Global Innovation Index (GII) systematically assesses the innovation capacities of various world economies. With around 80 indicators categorized into innovation inputs and outputs, the GII strives to comprehensively depict the diverse dimensions of innovation. In the GII, Mexico secures the 58th position out of the 132 featured economies, highlighting its standing in the global innovation landscape. Furthermore, within the subset of 36 upper-middle-income group economies, it attains the 12th rank, underscoring its notable innovation performance in this income category. Regionally, Mexico excels, securing the 3rd position among the 18 economies in Latin America and the Caribbean, emphasizing its influential role in fostering innovation within the region.

KEY FACTORS

Ranked as the 14th-largest global economy, Mexico has established itself as a manufacturing powerhouse, owing to a series of free trade agreements with the United States, Canada, and 50 other nations. This strategic positioning has led to integrated supply chains, with numerous major U.S. manufacturers collaborating with counterparts or operating facilities in Mexico. The country plays a pivotal role in supporting exports across diverse sectors, encompassing consumer electronics, vehicles, auto parts, petroleum, and agricultural products.

TOTAL NUMBER OF PATENT APPLICATIONS FILED

Total number of patent grants, total number of patents in force.

Disclaimer: The information available on this portal is solely for your kind perusal and general interest only. All the information on the portal is provided in good faith and therefore should not be relied upon or construed as a legal advice. If you find and/or encounter any errors, inaccuracies or discrepancies in such information, please write us.

Patent Laws and Regulations Mexico 2024

ICLG - Patent Laws and Regulations - Mexico Chapter covers common issues in patent laws and regulations – including enforcement, amendment, licensing, term extension, and prosecution.

Chapter Content Free Access

1. patent enforcement, 2. patent amendment, 3. licensing, 4. patent term extension, 5. patent prosecution and opposition, 6. border control measures, 7. antitrust law and inequitable conduct, 8. current developments.

1.1        Before what tribunals can a patent be enforced against an infringer? Is there a choice between tribunals and what would influence a claimant’s choice?

As of November 5, 2020, the Industrial Property Protection Law (IPPL) provides the possibility of enforcing patent rights either through an administrative infringement action before the Mexican Patent Office (IMPI) or a civil claim before the Civil Courts.

The traditional venue to enforce a patent is through administrative proceedings (infringement action) before the IMPI, which is not a Court of Law, but a federal administrative entity.  The decisions of this agency on patent infringement cases can be appealed by any one of the intervening parties with a specialised IP Court.  The decision issued by a specialised IP Court can be appealed before the Federal Circuit Courts in Mexico City; however, the case is turned randomly by a computer system.  By territorial jurisdiction, IP matters are mainly decided in Mexico City.

In the administrative venue, it is possible to request the IMPI to quantify the damages caused by the infringer through a special incidental proceeding once the infringement is declared and before the appeals with the specialised IP Court and the Federal Circuit Courts are solved.  Once the damages have been quantified by the IMPI, it is necessary to request a Civil Court to execute the Mexican Trademark Office (MTO)’s resolution.

The civil venue allows the patentee to file a claim for damages directly with a Civil Court without the requirement of having a declaration of infringement issued by the IMPI.  This means that it is no longer required to have a decision from the IMPI before submitting any civil action against an infringer for the payment of damages.  The Civil Courts are now empowered to solve disputes in accordance with the IPPL, which means that the Civil Court will decide on the infringement and the awarding of damages at once.

The downside of the civil venue is that the Civil Courts are not empowered to solve invalidity actions against IP rights.  Therefore, if an invalidity action is filed with the IMPI against the patent, the civil procedure will be suspended until the invalidity action is solved beyond the shadow of any appeal.

The filing of an infringement action before the IMPI or a Civil Court provides the defendant with legal standing to file an invalidity action against the patent being enforced.  Therefore, the claimant may be influenced to choose the administrative venue to prevent the infringement action from being suspended.

1.2        Can the parties be required to undertake mediation before commencing court proceedings? Is mediation or arbitration a commonly used alternative to court proceedings?

The parties are not required to undertake mediation before an infringement action; however, conciliation may be requested by any party of an existing litigation with the IMPI and, if the counterparty accepts, two conciliation meetings will be held, in which the IMPI will try to “conciliate” the parties’ positions, without expressing any possible decision about the merits of the case, to reach a settlement.

If the parties reach a settlement, it needs to be formalised by the IMPI, and in such case, the settlement agreement will be enforceable.  Conciliation proceedings will not suspend the litigation, which will continue normally.

This option has been poorly explored by patent infringement parties; however, we consider that it is a reasonable option that could benefit both parties and save time and costs.

After a claim is filed in the civil venue, the Court will order a conciliation hearing where the parties may or may not reach a settlement.  If the parties do not reach a settlement, the Court will continue with the prosecution of the claim.

1.3        Who is permitted to represent parties to a patent dispute in court?

At the first stage before the IMPI, there is no legal requirement to represent individuals or companies in patent disputes, other than the formalities of the corresponding Power of Attorney, but there is no registration at the Bar or certifications required to represent a party in patent litigation at the first stage of the administrative proceedings before the IMPI, namely: infringement; and invalidity actions.

However, at the further two appeal stages – the nullity trial before the Federal Court for Administrative Affairs (FCAA), and the Amparo suit before the Circuit Courts – the lawyers representing the parties are required to be attorneys-at-law, qualified at a federally licensed law school.

In the civil venue, it is required for the lawyers representing the parties to be attorneys-at-law, qualified at a federally licensed law school.

1.4        What has to be done to commence proceedings, what court fees have to be paid and how long does it generally take for proceedings to reach trial from commencement?

In the administrative venue, there is a requirement to pay Government fees to commence a proceeding (patent infringement or invalidity) before the IMPI.  The Government fees usually amount to approximately US$73.  The proceeding before the IMPI usually lasts two years.  This is the first stage; at least two additional stages are applicable.

In the civil venue, Government fees are not required to be paid.

1.5        Can a party be compelled to disclose relevant documents or materials to its adversary either before or after commencing proceedings, and if so, how?

The IMPI may obtain all the evidence deemed necessary for the verification of facts that may constitute a violation of one or more of the rights protected by the IPPL or the administrative declaration procedures.

When the owner concerned or the alleged infringer has submitted sufficient evidence to reasonably support its claims and has specified evidence relevant to the substantiation of its claims that are under the control of the opposing party, the IMPI may order the submission of such evidence during the proceedings and, where applicable, this authority should ensure the confidentiality of this information.

The Civil Courts are also empowered to order the submission of any evidence that may be essential to solve the controversy and are compelled to keep its confidentiality, if necessary.

1.6        What are the steps each party must take pre-trial? Is any technical evidence produced, and if so, how?

All pieces of evidence should be filed or announced with the original infringement claim or with the invalidity action before the IMPI or the Civil Court.

The applicable regulations do not facilitate a pre-trial stage; therefore, there is no evidence produced in such stage, but its preparation may be necessary.

1.7        How are arguments and evidence presented at the trial? Can a party change its pleaded arguments before and/or at trial?

Arguments should be filed in writing and follow the applicable procedural rules.  All arguments and evidence must be filed along with the initial brief requesting the infringement action, with an exception being provided for supervening evidence.  The general rule is no, parties cannot change their pleaded arguments, unless there are supervening or unknown facts.

1.8        How long does the trial generally last and how long is it before a judgment is made available?

The initial stage before the IMPI of a patent infringement action usually takes two years.  Once the IMPI issues a decision, there can be two further stages of appeals before the Courts, lasting no less than three further years.

1.9        Is there any alternative shorter, flexible or streamlined procedure available? If so, what are the criteria for eligibility and what is the impact on procedure and overall timing to trial?

The Conciliation proceeding before the IMPI or the Civil Courts is a shorter and more streamlined procedure in resolving the controversy.

The civil action is a shorter alternative in comparison to the administrative procedure; however, it can be hampered if an invalidity action is filed as a counterclaim.

1.10      Are judgments made available to the public? If not as a matter of course, can third parties request copies of the judgment?

The IMPI does not make the judgments of patent infringement trials or any proceeding available to the public until they are final and beyond the shadow of appeal, and some information regarding the decision remains confidential, especially if the parties request this.  The IMPI only publishes the conclusion of the judgment (depending on whether an infringement or invalidation was declared) in the IP Gazette, and not the reasoning of the judgment.

The Civil Courts publish versions of their judgments, but delete confidential information, such as the name of the parties.

1.11      Are courts obliged to follow precedents from previous similar cases as a matter of binding or persuasive authority? Are decisions of any other jurisdictions of persuasive authority?

Only jurisprudence is mandatory for the Courts.  In fact, as the IMPI is an administrative authority, it is not part of the judiciary, thus they are not bound to follow jurisprudence.  Briefly speaking, jurisprudence is construed by five rulings issued unanimously by the same Court or by the Supreme Court en banc , but this jurisprudence is mandatory for lower Courts from the judiciary.  The IMPI has stated that as it is an administrative authority, jurisprudence and judicial precedents are not compulsory for the lower courts when deciding the administrative proceedings, and are only persuasive.  Legally speaking, the IMPI is right; however, as the lower courts are acting as Judges when deciding contentious cases, ethically and as a matter of principle, they should observe binding jurisprudence, as the higher appeal Courts will do so; otherwise, they would only be delaying the application of the binding jurisprudence.

On the other hand, Civil Courts are bound to follow legal precedents.  This will be an important issue in future civil actions, as mentioned in question 1.1 above.

1.12      Are there specialist judges or hearing officers, and if so, do they have a technical background?

The IMPI is considered the only first-instance specialised authority that can solve patent enforcement proceedings in the first instance.  As of November 5, 2020, the IPPL allows Civil Judges, either federal or local, to decide on damages without exhausting the patent infringement proceeding, which forces them indirectly to rule on the infringement; these Judges are not specialised in IP Law.

In January 2009, a specialised IP Division at the Federal Administrative Courts began operating.  This Division has jurisdiction to review all cases resolved by the IMPI and based on the IP Law, the Federal Copyright Act, the Federal Law of Plant Varieties and other IP-related provisions.  The creation of this Division should help improve, in general terms, the applicable criteria for IP cases, but the three Magistrates forming this tribunal will have no technical background.

The last appeal stage is formed by the Federal Circuit Magistrates; although they are highly capable in legal issues, they do not need to have IP or technical backgrounds.

These two last authorities will not review the decision of the Civil Courts.  In those cases, the Superior Civil Tribunal and finally the Federal Civil Circuit Courts will decide on the appeals filed, with neither of them having IP-specific technical backgrounds.

1.13      What interest must a party have to bring (i) infringement, (ii) revocation, and (iii) declaratory proceedings?

• Any patentee or licensee (unless expressly forbidden from doing so) has the right to prosecute a suit against a third party infringing their rights.  A distributor may not bring a suit for infringement.
• An accused infringer may counterclaim patent invalidity under formal or technical considerations, upon receiving the infringement suit before the IMPI or Civil Courts, but it is not possible to request an additional judicial ruling or declaration.
• Cease and desist letters provide the required legal standing to initiate invalidity actions.  If pertaining to a specific industrial or commercial activity (i.e. the pharmaceutical industry), to provide legal standing, this is subject to debate and the Courts are divided.
• Amendments to the patent law allow anyone to request the IMPI to officially initiate the cancellation proceedings against patents.
• Simple legal standing, namely the mere business or commercial activity to challenge the validity of a patent, is tested before the Courts.  Recently, in some pharmaceutical cases, if the validity of a patent is not challenged as a response to an infringement action, the Federal Courts determined that it is necessary to demonstrate a direct affectation to prove legal standing.

1.14      If declarations are available, can they (i) address non-infringement, and/or (ii) claim coverage over a technical standard or hypothetical activity?

In Mexico, non-infringement declarations are not available .

1.15      Can a party be liable for infringement as a secondary (as opposed to primary) infringer? Can a party infringe by supplying part of, but not all of, the infringing product or process?

There is no specific provision in the IP Law relating to the doctrine of contributory infringement, inducement to infringe or any other indirect type of infringement.  There is some room, however, to argue in favour of this doctrine; however, it has not been tested before the IMPI or the Courts.  Actions may be brought against distributors of an infringing product, and provisional injunctions may be imposed on third parties to some extent.

1.16      Can a party be liable for infringement of a process patent by importing the product when the process is carried on outside the jurisdiction?

Yes, the infringement of a patent in Mexico includes the commercialisation and importation of a product derived from a patented process even if it is carried on outside Mexico.

1.17      Does the scope of protection of a patent claim extend to non-literal equivalents (a) in the context of challenges to validity, and (b) in relation to infringement?

For many years, it has been interpreted that only literal infringement is recognised under the current IP Law.  Infringement under the doctrine of equivalents is not expressly provided in the law; a broader interpretation of the patent law to explore the doctrine of equivalents is required.

Nevertheless, recently a Circuit Court in Mexico ruled on behalf of a pharmaceutical company, considering the peripheral interpretation method as a precedent, but this is not mandatory.

The Circuit Court considered that, according to the Mexican rules and regulations, the intention of the legislator to grant the claim a fundamental role in the definition of the subject matter of the patent is very clear, since this rule allows the State to protect the industrial property to a greater extent and to prevent actions affecting such exclusivity or that constitute unfair competition and, if applicable, eradicate this practice by means of the imposition of the corresponding sanctions.

Therefore, the level of a possible infringing action shall be decreed based on the identification with the scope of protection of the claims that shall determine the existence of an eventual infringement due to identity or equivalence.

Although this ruling does not exactly implement the U.S. doctrine of equivalence, this is a positive start.  Concerning challenges to validity, there is no precedent that establishes that the scope of protection of a patent is extended to non-literal equivalents.  Further, the law does not expressly recognise equivalents.  However, from a broad interpretation of the patent law, it might be possible to raise an argument in favour of the applicability of the doctrine of equivalents in regard to invalidity actions.

1.18      Can a defence of patent invalidity be raised, and if so, how? Are there restrictions on such a defence e.g. where there is a pending opposition? Are the issues of validity and infringement heard in the same proceedings or are they bifurcated?

Although the issues of infringement and validity are prosecuted in different filings with the IMPI, they are decided at the same time, especially if the invalidity action is filed as a counterclaim; specifically, if filed at the same time as the response to the infringement action.  This administrative venue will continue.

The Civil Court allows patent owners to claim damages directly without waiting for an administrative decision.  In this venue, in case an invalidity action is filed, the IMPI will be the only one entitled to rule over it and the civil case will be stayed until a decision is reached.

1.19      Is it a defence to infringement by equivalence that the equivalent would have lacked novelty or inventive step over the prior art at the priority date of the patent (the “ Formstein defence”)?

As explained in question 1.17, the doctrine of equivalence is still developing in Mexico.  The law does not expressly provide a defence to infringement by equivalence.  However, the interpretation of the law provisions concerning patentability conditions and patentable subject matter, enable the application of the “ Formstein defence”.

1.20      Other than lack of novelty and inventive step, what are the grounds for invalidity of a patent?

The IP Law, which was in force until November 5, 2020, provides grounds upon which a patent can be invalidated:

• When it was granted in contravention of the provisions on requirements and conditions for the grant of patents or registrations of utility models and industrial designs.
• When it was granted in contravention of the provisions of the law in force at the time when the patent or registration was granted.  The nullity action based on this section may not be based on a challenge of the legal representation of the applicant when prosecuting and obtaining a patent or a registration.
• When the application is abandoned during its prosecution.
• When granted by error or serious oversight, or when it is granted to someone not entitled to obtain it.

The nullity actions mentioned under (1) and (2) may be filed at any time; the actions under (3) and (4) must be filed within five years and counted from the date on which the publication of the patent or registration in the Gazette becomes effective.

These causes of invalidation can be enforced against patents granted before November 5, 2020.

Now, in accordance with the IPPL, in force as of November 5, 2020, a patent can be only declared invalid:

• when the subject matter is not considered an invention, or in case of non-patentable subject matter, lack of novelty, inventive step or industrial applicability;
• due to lack of disclosure;
• due to lack of support;
• in case of divisional applications, when granted against new rules for them;
• when broadening the scope of protection originally allowed during a correction proceeding;
• due to mistakes recognising priority rights that otherwise could result in a lack of novelty or inventive step;
• in double patenting cases; and
• when granted to a person that was not entitled to apply for it.

None of these actions have statutes of limitations.

The first set of invalidity actions mentioned above will be applied only for patents granted before November 5, 2020.  Any patent granted after that date may only be challenged using the second set of invalidity actions.

1.21      Are infringement proceedings stayed pending resolution of validity in another court or the Patent Office?

The general rule is to decide linked cases’ invalidity and infringement simultaneously in the administrative venue.  As to the new civil venue, please see question 1.1 above.

1.22      What other grounds of defence can be raised in addition to non-infringement or invalidity?

The basis of this defence is that the proper interpretation of the patent claim does not catch the alleged infringing product or process.  The IP Law does not contemplate affirmative defences such as laches.

1.23      (a) Are preliminary injunctions available on (i) an ex parte basis, or (ii) an inter partes basis? In each case, what is the basis on which they are granted and is there a requirement for a bond? Is it possible to file protective letters with the court to protect against ex parte injunctions? (b) Are final injunctions available? (c) Is a public interest defence available to prevent the grant of injunctions where the infringed patent is for a life-saving drug or medical device?

Preliminary injunctions can be requested with the IMPI before the filing of the infringement action or at any time during prosecution.  The proceeding is inaudita altera pars with no formal hearing as it is followed up in writing.

For the implementation of the preliminary injunctions, the IMPI will analyse the appearance of a prima facie case and the non-violation of public order provisions.  The IMPI will also take into consideration the seriousness of the infringement and the nature of the preliminary injunction.  For such analysis, the party moving forward with the injunction must:

• the potential existence of an infringement to such right;
• that violation of such right is imminent;
• the possibility of the right being irreparably damaged; or
• a well-founded fear that the evidence may be destroyed or hidden.
• Post a bond to warrant the possible damages to the defendant.  The amount of the bond will be fixed by the IMPI considering the evidence filed by the plaintiff, and the IMPI may request the plaintiff to extend the bond after the implementation of the injunctions.
• Provide the necessary information to identify the establishment goods subject to the injunction.

Preliminary injunctions are available on an ex parte basis.  However, after the defendant is served with the injunctions, the alleged infringer is entitled to the lifting of preliminary injunctions by placing a counterbond, in which case the MTO will analyse if the damages that the alleged infringer may suffer with the implementation of the injunctions are greater than the damages that the plaintiff may suffer.  The defendant has the right to allege whatever he may deem pertinent with respect to the provisional injunctions within a term of 10 days from the day of the execution.

Once the case is resolved by the IMPI and infringement is found, definitive injunctions are imposed on the infringer.  It is possible to file a constitutional trial (Amparo) before the Federal District Courts to try to stop the imposition of preliminary injunctions.  However, the admissibility and likelihood of success of such an action has to be assessed on a case-by-case basis.

There is no specific remedy to prevent an injunction in the case of life-saving drugs or medical devices; however, compulsory licences are available in Mexico.  Please see question 3.2.

1.24      Are damages or an account of profits assessed with the issues of infringement/validity or separately? On what basis are damages or an account of profits assessed? Are punitive/flagrancy damages available?

According to the IPPL, the awarding of damages for the violation of an IP right shall not be lower than 40% of the commercial value of the infringing goods, the profits of the infringer, the lost profits of the patentee or the fee that the infringer should have paid for a licence.

The awarding of damages is assessed through a special incidental proceeding with the IMPI after the infringement is declared.  In the case of the Civil venue, the awarding of damages is assessed with the issues of the infringement.

In April 2018, the Mexican Supreme Court published a decision relating to the interpretation of the so-called 40% rule for calculating damages. 

The decision expressly establishes that the validity and constitutionality of the provision establishing the 40% rule, and the rule itself, is not questioned by the Supreme Court, but the ruling establishes that the concept of damages is separate from the amount of the compensation and that the plaintiff is required to prove, on a case-by-case basis, evidence of actual harm, material and immaterial and a “ causal nexus ” between the infringing activity and the damages suffered by the IP owner.

Even though this ruling was issued during the validity of the former IP Law, we consider that it will be used by the IMPI and the Courts to analyse the quantification of damages in infringement actions filed under the IPPL.

1.25      How are orders of the court enforced (whether they be for an injunction, an award of damages or for any other relief)?

In the event of a second or subsequent offence, the fines previously imposed on the offender shall be doubled.  A second or subsequent offence refers to every subsequent infringement to the same provision, after the first infringement is declared in a final resolution.

Likewise, closures may be ordered in the decision that rules on the infringement, in addition to a fine or without a fine having been imposed.  There shall be grounds for permanent closure when the establishment has been temporarily closed twice within a period of two years if, during said period, the infringement is repeated regardless of whether the location thereof has changed.

1.26      What other form of relief can be obtained for patent infringement? Would the tribunal consider granting cross-border relief?

Other forms of relief include orders to stop the infringement activity, fines and closure of the facilities where the infringement activities take place.  Costs and attorneys’ fees can be recovered in a civil claim for damages and lost profits.  This takes place after the IMPI has declared the administrative infringement.  The Civil Courts follow a specific scheme for reasonable attorneys’ fees, regardless of whether this table reflects the actual fees charged.

1.27      How common is settlement of infringement proceedings prior to trial?

It is very unusual to settle cases before the decision is reached, because there are very few incentives for both parties to settle; this is because contingency derived from the infringement proceedings requires a final decision which would require a long period of time.  Therefore, neither plaintiff nor defendant would face the corresponding recovery/contingency of damages as an actual or imminent situation.

1.28      After what period is a claim for patent infringement time-barred?

The IMPI’s current criterion is that the time limit for seeking a remedy is during the life term of the patent.  Once the patent has expired, an action may not be brought for events that took place before the end of the life term.  A defence of laches has not been tested before the Courts; therefore, legally speaking, a specific time limit exists in the IP Law to bring an infringement action during the life term of the patent.

However, there is a two-year limitation period to pursue a civil action for damages; therefore, this statutory term to claim damages should be taken into consideration when looking at the timing to file infringing actions.

1.29      Is there a right of appeal from a first instance judgment, and if so, is it a right to contest all aspects of the judgment?

Appeals against the IMPI can be brought either before the specialised IP Division of the Federal Administrative Court, or before the IMPI itself through a review recourse.  Decisions by either Court can be appealed in a final stage before Federal Circuit Courts.

Appeals against Civil Courts can be brought with the Superior Civil Tribunal and its decisions can be appealed before the Federal Civil Circuit Courts.

1.30      What effect does an appeal have on the award of: (i) an injunction; (ii) an enquiry as to damages or an account of profits; or (iii) an order that a patent be revoked?

As a matter of principle, when filing an appeal, the plaintiff can request the Federal Court for Administrative Affairs or a District Judge to suspend the effects of the resolution issued in the first instance.

In the case of injunctions, the plaintiff is able to request the courts to order the IMPI to refrain from collecting the fine imposed as a result of the infringement, but the plaintiff will not be allowed to sell or use the infringing goods.

If an appeal is filed against a resolution awarding damages, the decision of the appeal can either revoke the awarding of damages, modify the amount of damages awarded or order the replenishment of the procedure.

If a patent is invalidated by the IMPI, the appeal with the Federal Court for Administrative Affairs can have the effect of revoking the decision issued by the IMPI and recognise the validity of the patent.

1.31      Is an appeal by way of a review or a rehearing?  Can new evidence be adduced on appeal? 

The two options are available; if the resolution is challenged through a Review Recourse before the IMPI itself, the Head of the Litigation Department will review that it was issued accordingly with the provisions of the law, and consider the evidence in the file only.

If the resolution is challenged through an appeal before the Federal Court for Administrative Affairs, the parties are able to submit new evidence to prove that the resolution is illegal or that certain technical aspects of the patent were not duly analysed by the IMPI.

1.32      How long does it usually take for an appeal to be heard?

The appeal process takes around one to one-and-a-half years.

1.33      How many levels of appeal are there?  Is there a right to a second level of appeal?  How often in practice is there a second level of appeal in patent cases?

There are three levels of appeal.  A resolution can be challenged through a Review Recourse before the IMPI and this level of appeal is optional and not commonly used.

The second level of appeal – or first, depending on whether a Review Recourse was filed – is before the Federal Court for Administrative Affairs.  The third level of appeal is filed with the Federal Circuit Courts.

In Mexican practice, the resolutions issued by the IMPI declaring an infringement or affecting a patent are commonly challenged up to the third level of appeal.

As for the case of civil courts, appeals can be brought with the Superior Civil Tribunal and its decisions can be appealed before the Federal Civil Circuit Courts.

1.34      What are the typical costs of proceedings to a first instance judgment on: (i) infringement; and (ii) validity? How much of such costs are recoverable from the losing party? What are the typical costs of an appeal and are they recoverable?

The Government fees for filing an invalidity or infringement amount to US$73, approximately.  We have tried in the past to recover attorney fees under the provisions of the TRIPS Agreement and NAFTA (mirror provisions in the USMCA) with disappointing outcomes.  In Mexico, it is quite difficult to achieve a ruling of compensation of attorney fees, and it could entail a long litigation.

The national law specifically provides that attorney fees may not be collected for administrative litigations (such as an IP infringement action) and even if the attorney fees are awarded, they are significantly lower than the actual expenses and they must be claimed in the civil court.  Therefore, there is no cost–time benefit of seeking compensation of attorney fees in Mexico.

1.35      For jurisdictions within the European Union: What is the status in your jurisdiction on ratifying the Unified Patent Court Agreement and preparing for the unitary patent package? For jurisdictions outside of the European Union: Are there any mutual recognition of judgments arrangements relating to patents, whether formal or informal, that apply in your jurisdiction?

Foreign decisions are not binding to Mexican authorities; however, they are often introduced in litigation for illustrative purposes.  Mexico does not have any similar mechanism to the one contained in the Unified Patent Court Agreement.  The only recognition available for foreign decisions according with our civil law is in order to execute foreign decisions for purposes of obtaining payment or any other liability obligation in civil procedures; however, for the specific case of patents, this option is not available upon rule 4 Bis , 1) and 2) of the Paris Convention.

2.1        Can a patent be amended ex parte after grant, and if so, how?

According to the provisions of the IPPL, post-grant amendments are only allowed to correct any obvious or form errors, to delete one or more claims, or to include one or more dependent claims within an independent claim; however, when an invalidity action has already been filed, any amendment petition will be dismissed.  This was a trend in patent litigation that is now forbidden by the new law.

2.2        Can a patent be amended in inter partes revocation/invalidity proceedings?

If an invalidity action is filed by a third party against a patent, it may result in a partial invalidation of the patent limiting the scope of the patent; a voluntary amendment would be allowed in an inter partes proceeding if both parties agree in order to settle the litigation.

It is worth mentioning that as of November 5, 2020, if an invalidity action is filed against a patent, the patentee cannot unilaterally amend the claims of the patent to avoid its invalidation; the request to amend the patent will be suspended until the invalidity action is solved beyond the shadow of an appeal.

2.3        Are there any constraints upon the amendments that may be made?

The amendments under the new law are restricted to correcting any obvious or form errors, and to limiting the scope of claims as specified in question 2.1 above.

3.1        Are there any laws which limit the terms upon which parties may agree a patent licence?

It is possible to record a licence either onto a granted patent or in a pending application, so that the same may be opposed against third parties.

The term of the licence may not exceed the natural term of the patent itself and may not be recorded when a patent has already elapsed.

Patent owners may grant further licences unless expressly agreed to the contrary.

Licensees may exert defensive rights over the patent, unless specifically accorded, while working by licensee inures to the benefit of the licensor.

Finally, in regard to the cancellation of the licence recordal, the Mexican Industrial Property Law (MIPL) establishes that the cancellation occurs when:

• the same should be requested by both the licensee and the licensor jointly;
• the patent lapses or is declared null; or
• there is a Court order.

3.2        Can a patent be the subject of a compulsory licence, and if so, how are the terms settled and how common is this type of licence?

After three years starting from the date of grant of the patent, or four years from the filing date, whichever is later, anyone may request from the IMPI the grant of a compulsory licence when it has not been used, except if it duly justifies an exit.

It is also provided that there will be no grant of a compulsory licence when the holder of the patent or a licensee has been carrying the importation of the patented product or the product obtained by the patented process.  Furthermore, the working of a patent by a licensee will be deemed to be worked by its holder, provided that the licence was recorded with the IMPI.  The party applying for a compulsory licence shall have the technical and economical capacity to efficiently work the patented invention.

On the other hand, before the grant of the first compulsory licence, the IMPI will provide the patentee with the opportunity to begin working the patent within a term of one year from the date of personal notification given to him.  Following a hearing with the parties, the IMPI will decide on the grant of a compulsory licence, and if the IMPI decides to grant it, it will set forth its duration, conditions, field of application and amount of royalties that correspond to the holder of the patent.

A compulsory licence can be also granted for emergency or national security reasons, including serious diseases declared as such by the General Health Council.  The IMPI will determine that certain patents can be exploited through a compulsory licence for reasons of “public benefit”, when the lack of a licence would hinder or overvalue the production, supply or distribution of basic goods to the population.  In cases of serious diseases, the General Health Council must publish a declaration of national emergency in the Official Gazette and thereafter the IMPI will issue the licence.

We consider that this type of compulsory licence is a possibility; although under the following circumstances that should be proved: hindrance; overprice; or shortage caused by the exclusivity right of the patent.

We are not aware of any compulsory licence being granted in recent years.  In any event, the royalties are established by the IMPI after a hearing with the parties, and they should be fair and reasonable.

4.1        Can the term of a patent be extended, and if so, (i) on what grounds, and (ii) for how long?

For applications filed in Mexico from November 5, 2020, patent owners may request from the IMPI complementary term certificates for patent applications that were granted after five years of prosecution, when the delay is imputable to the IMPI.  Such petition must be filed before paying the issuance fees and the IMPI will grant one day for each two days’ delay imputable to them.  Any automatic term extension provided by law taken by the applicant will be subtracted from the five-year term.

As to extensions related to delays in the granting of marketing authorisations for pharmaceutical products, the USMCA rule will not enter into force in Mexico until 2025.

In addition to the above, on October 14, 2020, the Mexican Supreme Court issued an important precedent which opens the opportunity to compensate the life term of patents due to unjustified delays during patent prosecution prior to the USMCA.  However, the ruling applies and benefits the complaining party only.  The decision is not binding to the IMPI, and therefore, it is expected that the IMPI will not adopt the criteria to compensate the life term of patents in similar cases without a court order.  For the Mexican Courts, the precedent is not binding either, but highly persuasive.  The patent was prosecuted under the rules of the former IP Law.

5.1        Are all types of subject matter patentable, and if not, what types are excluded?

The following subject matter is not patentable in Mexico:

• Processes for cloning human beings and its products.
• Processes for modifying the germ genetic identity of human beings and its products when they imply the possibility of developing a human being.
• Uses of human embryos for industrial or commercial purposes.
• Processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal, and also animals resulting from such processes.
• Plant varieties and animal breeds, except for micro-organisms.
• Essentially biological processes for obtaining plants and animals and the products resulting from these processes, except for microbiological processes and their products.
• Methods of surgical, therapeutic or diagnostic treatment applicable to the human body and to animals.
• The human body and discoveries of any of its elements; however, biological material isolated from its natural environment and obtained by means of a technical process could be patentable.

On the other hand, the following subject matter is not considered an invention in Mexico (when said subject matter is claimed as such):

• Discoveries, scientific theories or its principles.
• Mathematical methods.
• Aesthetic creations and artistic or literary works.
• Diagrams, plans, rules and methods for carrying out mental processes, playing games, carrying out commercial economic activities or doing business.
• Computer programs.
• Methods of presenting information.
• Biological and genetic material as found in nature.
• Juxtaposition of known inventions or mixtures of known products, except where in reality they are so combined or merged that they cannot function separately or where their particular qualities or functions have been so modified as to produce an industrial result or use not obvious to a person skilled in the art.

5.2        Is there a duty to the Patent Office to disclose prejudicial prior disclosures or documents? If so, what are the consequences of failure to comply with the duty?

There is no duty to disclose prejudicial prior art or documents.

5.3        May the grant of a patent by the Patent Office be opposed by a third party, and if so, when can this be done?

In a period of two months after the publication of the patent application, information related to the patentability of an invention can be filed before the IMPI by a third party.  If filed, the information may be considered at the Examiner’s discretion and it will not suspend the application process.  The person filing the information will not be considered a party and will not have access to the patent file or immediate legal standing to challenge a granted patent.

After a patent is granted, anyone can inform the IMPI of causes of invalidity.  The authority may consider such information at its discretion to initiate an ex officio cancellation proceeding.

5.4        Is there a right of appeal from a decision of the Patent Office, and if so, to whom?

This opposition is more like a third-party prior art submission.  The person filing it is not considered part of the patent prosecution proceeding and therefore does not have legal standing to appeal.  Furthermore, the IMPI does not issue a formal resolution to the opposition itself.

5.5        How are disputes over entitlement to priority and ownership of the invention resolved?

Disputes over entitlement to priority and ownership of the invention are resolved by the Civil Courts.  There is concurrent jurisdiction for both Federal and Local Civil Courts and its resolution as to ownership must be complied with by the IMPI.

However, a cause of invalidity is provided both in the MIPL and IPPL when a patent was granted to a person/entity that was not entitled to apply for it.

5.6        Is there a “grace period” in your jurisdiction, and if so, how long is it?

The IPPL contemplates a one-year grace period.  This one-year grace period is limited in the MIPL to public disclosures made by applicants or inventors.  However, in the IPPL, the grace period applies more broadly to any direct or indirect public disclosures made by the inventor(s) or applicant(s), or by third parties that obtained the information from them.

When the corresponding application is filed, the evidentiary documents shall be included in the manner laid down in the Regulations under this Law.  The publication of an invention contained in a patent application or in a patent granted by a foreign office shall not be subject to the grace period.

5.7        What is the term of a patent?

The term of a patent is 20 years from the filing date.  Term extensions are available in Mexico; please see question 4.1 above.

5.8        Is double patenting allowed?

Double patenting is not allowed in Mexico.

5.9        For jurisdictions within the European Union: Once the Unified Patent Court Agreement enters into force, will a Unitary Patent, on grant, take effect in your jurisdiction?

This is not applicable to our jurisdiction.

6.1        Is there any mechanism for seizing or preventing the importation of infringing products, and if so, how quickly are such measures resolved?

Injunctions are available for any infringement of patent rights on a provisional and permanent basis in Mexico.  The Customs Law establishes the rules for implementing the same with Mexican Customs.  Mexican Customs have the faculty to retain a product for Intellectual Property matters for a limited period of five days, but if no action is executed by third parties, the importation process will continue, thus it is necessary to have an official order from the competent authority, indicating that an administrative action was submitted.  Once Customs receive the evidence that an injunction request was filed, the products will be seized.

For the implementation of the preliminary injunctions, it is necessary to submit the petition and the IMPI will analyse the appearance of a prima facie case and the non-violation of public order provisions.  The IMPI will also take into consideration the seriousness of the infringement and the nature of the preliminary injunction.  For such analysis, the party moving forward with the injunction must prove the requirements mentioned in question 1.23.

 In the case of importations, there are two cases: the product was imported to enter the Mexican market; or the importation was a transshipment.

For both cases, preliminary injunctions are available on an ex parte basis.  However, after the defendant is served with the injunctions, the alleged infringer is entitled to the lifting of preliminary injunctions by placing a counterbond, in which case the MTO will analyse if the damages that the alleged infringer may suffer with the implementation of the injunctions are greater than the damages that the plaintiff may suffer.  The defendant has the right to allege whatever he may deem pertinent with respect to the provisional injunctions within a term of 10 days from the day of the execution. 

In regard to the scope of the injunctions, the IMPI may order the alleged infringer or third parties to suspend or discontinue the acts constituting a violation of the provisions of law and/or the seizure of the infringing goods.

If the product was imported as a transshipment, the first notification to the infringer must be done according with the legal requisites for foreign notifications.  This procedure is commonly conducted through the Ministry of Foreign Affairs.

With regard to the time frame, once the legal requisites are fulfilled, preliminary injunctions are adopted and put into practice in a rather fast fashion that may range from two to seven days, depending on the urgency of the implementation; i.e. seizures at customs, due to the nature of the importation process and the need for a rather quick implementation, may take 48 hours.

Permanent injunctions are declared once the administrative infringement proceeding is finally decided.

7.1        Can antitrust law be deployed to prevent relief for patent infringement being granted?

There is no precedent in Mexico of antitrust, unfair competition or business-related tort actions brought against patentees for the use of a patent.  Courts generally consider that the use of a state-given right cannot constitute a violation in these areas.

7.2        What limitations are put on patent licensing due to antitrust law?

An action could theoretically be brought for activities falling outside the scope of a patent, such as non-competition agreements for products that are not covered by the claims, product- tying within that scope, or unfair-competition activities such as advertising that a product is better than an alternative for the sole reason of it having a patent.  Actions could also be brought before the Antitrust Commission for other forms of abuse of patent rights, such as clearly unfounded attempts to enforce a patent.

On July 20, 2016, the Mexican Antitrust Commission (known by its Spanish acronym, COFECE ) announced that it will conduct a study regarding competition concerns over pharmaceutical products with lapsed patents.  This is the first time such a study has been undertaken in Mexico.

The Commission will first analyse the rationale behind the fact that there are approximately 350 products listed in the National Formulary with sole suppliers, although around 63% of these products have lapsed patents.  The COFECE emphasised that this analysis should not be considered in any way a prejudgment of potential misconducts.  It pointed out that this assessment aims to provide Mexican regulatory agencies with recommendations on how to encourage competition and correct inefficiencies.

We believe that the COFECE official communication in this regard contains several flaws and confuses concepts in order to justify the study.  For example, the Commission provides data concerning out-of-pocket expenses of the private sector to explain its reasoning for reviewing public acquisitions of medical products; however, these are separate realms governed by various factors and rules and are not necessarily related.

7.3        In cases involving standard essential patents, are technical trials on patent validity and infringement heard separately from proceedings relating to the assessment of fair reasonable and non-discriminatory (FRAND) licences? Do courts set FRAND terms (or would they do so in principle)?  Do courts grant FRAND injunctions, i.e. final injunctions against patent infringement unless and until defendants enter into a FRAND licence?

Yes.  The technical trials on patent validity and infringement are heard by the IMPI, whereas proceedings relating to the assessment of FRAND licences are heard by the COFECE.

There is no precedent in which FRAND injunctions were granted against patent infringement.  However, the COFECE has broad faculties to impose injunctions; thus, it may be argued that such authority could order the stay of a patent infringement case until a proceeding concerning a FRAND licence is decided, or even a final injunction against a patent infringement.

8.1        What have been the significant developments in relation to patents in the last year?

The main developments that were expected that are now a reality include the introduction of the USMCA, and the IPPL which entered into force on November 5, 2020.

In regard to patent prosecution and patent litigation, the IPPL contains significant developments which are mentioned above and can be summarised as follows:

• Double patenting prohibition.  While this is the current practice, the new practice will introduce an explicit prohibition.
• A grace period for prior disclosures made by third parties in violation or breach of confidential agreements.
• A new legal system for divisional patents that will narrow the possibilities for patent owners to divide their parent application multiple times.
• A new “Bolar” clause for biotechnological and chemical inventions.
• Supplementary Patent Certificates to compensate for the delay in granting the approvals of marketing authorisations.
• Prohibition for narrowing the scope of the allowed claims when an invalidity action has started.
• Authority to allow monetary damages after the infringement ruling is granted to the IMPI.  In such case, the IMPI will open an incidental proceeding to rule on this matter.
• Direct jurisdiction to Civil Courts, both Federal and Local, to rule on damages.
• The 40% rule, as described in question 1.24 above, remains in place.
• A new conciliation proceeding before the IMPI has been introduced.
• A new Parallel Patent Grant agreement between the United States Patent and Trademark Office and the IMPI.

Likewise, in 2020, Mexico joined the Hague System related to Industrial Designs, and so now applicants can use the Hague System to protect their industrial designs in Mexico.  Besides allowing foreign applicants to protect their designs in Mexico through this system, Mexico’s accession would also allow Mexican companies and designers to seek protection in contracting parties of the 1999 Act of the Hague Agreement by means of a single international application.  It is important to bear in mind that: Mexico does not allow deferment of publication; a design application must refer to a single design or a group of designs so linked as to form a single design concept so the division of the application may be requested during the examination; and that the maximum duration of protection for designs is 25 years.

8.2        Are there any significant developments expected in the next year?

New regulations for the IPPL were expected in 2022; however, it is expected that in the last quarter of 2023, or 2024, the regulations will be issued.  Regulations cannot exceed the general legal framework provided by law, and therefore, no substantial changes are expected; rather, specific provisions on how to apply the law are expected.

8.3        Are there any general practice or enforcement trends that have become apparent in your jurisdiction over the last year or so?

Over the past few years it has been a trend to file ex parte post-grant amendments to patents when invalidity actions were filed against them; however, this possibility is forbidden in the IPPL.

On the other hand, use of the new civil venue for collecting damages for IP violations, including patent violations, will certainly be a trend in the coming years.

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Mexico: Patents

H&A / Services / LATAM Guidelines / Mexico / Mexico: Patents

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WIPO-administered Treaties:  

Contracting Party of the Paris Convention: YES

Contracting Party of the Patent Cooperation Treaty (PCT): YES. Due term for entry into national phase: 30 months.  

Patent Law in force:  

Federal Law under protection of Industrial Property (published in the official Journal on 1st of July 2020), in force since 5th of November 2020  

Types of protection available:  

Patent of Invention; Utility Model.  

Formal filing requirements:  

• Power of Attorney merely signed (no legalization required) within 60 days from office action. Possible extension of term.
• Assignment document from the inventors merely signed (no legalization required) within 60 days from office action (not required for entry into national phase of PCT applications). Possible extension of term.
• D igital copy or certified copy of priority application within 90 days from filing (not required for entry into national phase of PCT applications provided that PCT/IB304 form is available). DAS system is available.   
• Sequence listings must be filed in WIPO Standard ST.26 format.

Filing of the patent application in a foreign language:  

Possible . Late submission of the Spanish translation is possible within 60 days from office action. Possible extension of term.   

Substantive examination must be requested by the applicant :  

Search report must be requested by the applicant:  

Observations by third parties:  

YES, within 2 months from publication.  

Opposition:  

Average time from filing to grant:  

Term of protection for patents:  

20 years from filing date.  

Term of protection for utility models:  

15 years from filing date.  

Differences between utility model and patent:  

UM suitable for utensils, instruments, tools, apparatus, devices, or any parts or improvements thereof, but not to chemical products, methods or uses; lower threshold for inventive step.  

Maintenance:  

Payment for periods of 5 years after grant.  

Compulsory licensing:  

Link to Patent Office:  

http://www.impi.gob.mx/  

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Mexico: Requirements For Filing Patent, Utility Model And Design Applications In Mexico

Theoretical or scientific principles; Discoveries consisting of making known or disclosing something that already existed in nature, even if previously unknown to man; Schemes, plans, rules and methods to perform mental feats, games or businesses and mathematical methods; Computer software; Forms of presentation of information; Aesthetic creations and artistic or literary works; Methods of surgical or therapeutical treatment or diagnosis applicable to the human body, and those relating to animals; and The juxtaposition of known inventions or mixtures of known products, their variation of use, form, dimensions or materials, unless they are actually combined or merged in such a manner as not to be able to operate separately or that the qualities or characteristic functions thereof are modified to obtain an industrial result or use not openly apparent to a person versed in the subject matter.

Processes that are essentially biological for the production, reproduction and propagation of plants and animals; Biological and genetic material as found in nature; Animal breeds; The human body and the living parts that compose it; and Plant varieties; however, effective as of October 26, 1996 Mexico enacted a Federal Law of Plant Varieties, which is administered by the Ministry of Agriculture. Filing requirements for Plant Varieties Applications can be sent with our compliments, upon request.

Provide the complete serial number of the patent application (s), country (ies) and filing date (s), clearing indicating month, day and year.

The drawings must be submitted concurrently with the filing of the application. It is possible to submit informal drawings concurrently with the application if the formal drawings cannot be prepared in time. Formal drawings must be filed within a non-extendible term of two months commencing from the filing date of the application.

The formal drawings must be originals prepared in black ink and on 36kg, bond paper. Paper size can be either 21.5cm x 28cm or A4 (21cm x 29.7cm.) Three duplicates which can be quality photocopies. Limits for the area surface employed for the figures are 17.5cm x 24.5 cm and 17cm x 26.2cm, respectively depending on the paper size. No sketches or handwritten notations are permitted. No legends are permitted with the exception of a word or isolated words when absolutely indispensible, such as "water", "vapor", "open", "closed", etc, and in the case of electric circuits, etc, the code words indispensable for their understanding.

If the formal drawings were not filed concurrently with the application, they can be filed within an non-extendible term of two months commencing from the filing date of the application.

If the application is to be filed claiming priority (ies) under the Paris Convention, the certified copy (ies) must be filed with the Mexican Patent Office within a non-extendible term of three months commencing from the filing date of the application.

Form 2 is to be used when the applicant is an individual and must be granted before two witnesses, indicating therein their full names and addresses below their signatures. No notarization or legalization is required. Form 4 is to be used when the Power is granted by a corporation or any other corporate entity for procurement of legal protection only. No notarization or legalization is required. Indicate immediately below the text of the Power itself at (1) the corporate resolution (such as Charter of Incorporation or By Laws or Board of Directors meeting or the like) whereby the Officer executing the Power was given authority to grant Powers of Attorney or a specific Power, mentioning its place and execution. The signature of two witnesses are also required, indicating their names and full domiciles below their signatures. Should the applicant or applicants find it necessary to grant a Power of Attorney to take nullity and enforcement actions it is recommended they contact a Mexican lawyer who can provide the appropriate form and explanations.

If the inventors assigned their rights worldwide to the applicant, it will be necessary to file a certified copy thereof, duly legalised by the Mexican Consul or legalised by Apostille, in countries that are members of the Hague Convention. If the rights have not been previously assigned for Mexico then it is possible to use our form of Assignment of Rights which does not require notarization of Apostille. The form of the Assignment of Rights must indicate the full names of the inventor(s) and Assignee and must be executed before two witnesses, whose signatures, full names and addresses must also be indicated

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PATENTS  

INFORMATION REQUIRED FOR THE PRESENTATION OF PATENTS IN MEXICO.

The minimum information required to file a patent application in Mexico is as follows:

A. Name, address and nationality of the applicant; B. Name, address and nationality of the inventor (s) C. Title of the invention; and D. Priority information, country, application number and date of the first deposit, if necessary.

Likewise, the patent application must be accompanied by the following documents: A. Description; B. Claims; C. Drawings; D. Summary; E. Power (simple signed); F. Transfer of rights; Y G. Certified copy of Priority (if applicable)

Remarks of documents required:

The power of attorney must be signed by the legal representative of the applicant and two witnesses.

The transfer of rights must be signed by the inventors and the legal representative of the company that will be the owner of the invention. These documents can be submitted later, without affecting the legal date.

For those applications that claim priority based on the Paris Convention, it will be necessary to submit a certified copy of the priority document. This document must be submitted no later than the third month following the date of submission of the application in Mexico. This certified copy of the priority it is necessary if the application is submitted as a national phase based on the PCT, provided that such certified copy has been submitted to WIPO during the international phase.

It should be noted that Mexico has signed some PPH collaboration agreements with some patent offices. If you comply with the requirements, you can prepare a letter before the IMPI at the end of the opposition period that includes two months after the publication in the official gazette.

During their processing, the applications do not require covering the maintenance payment (annuities), but until they are granted.

Patent duration: The patents in Mexico have a duration of 20 years from their legal date.

The information about the necessary documents needed to submit a new patent application in Mexico according to the Paris Convention is:

Full name of the applicant and the inventor (s). Full address and nationality of the applicant and the inventor (s). Formal drawings. The drawings should not contain text / captions, and should not include colors or images. Power of Attorney Document (attached format), indicating the name of the legal representative and name and full address of two witnesses (in the case of a legal entity). It does not require Notarization or Legalization. Document of Assignment of rights of each inventor to the applicant, in case the applicant is different from the inventor (attached format) indicating the name, address and signature of the designers no notarization or legalization is required. Number and date of the foreign application to be claimed as a priority (if any). Certified copy of the priority document (if any).

It should be noted that the priority document (if any), power and assignment are required by law but are not mandatory for submission and may be exhibited later. The non-extendable deadline to submit the certified copy of the priority that will be claimed is 3 months from the date of filing in Mexico. We require a document of assignment of rights of each inventor to the applicant, in original, its notarization or legalization with Apostille is not necessary. It is important to note that the inventor's data is essential for the presentation so it is impossible to omit the mention of them. The assignment and the power of attorney if they are not submitted with the application, will be required during the examination by means of an ex officio of requirements. This office provides for a period of 2 months that can be extended for another 2 months to give due response to it.

TRADEMARKS Trademark Law in Mexico: Legal basis in the Industrial Property Law and its Regulations, in force since June 27th, 1991; last amendment: May 18, 2018. Mexico is a member of the Madrid Protocol. Trademark protection is obtained by registration. The right to use a trademark can also be acquired by commercial use; however, this right may be sought during a statutory period. The general rule of the Mexican IP system is first to file, but in case of litigation or conflict the previous IP use can be enforced against the registration and, therefore, the owner who proves previous use may get the cancellation of the registration before 3 years after final registration of the trade mark which is being challenged. Classification Nice classification, 11th edition Trademark Registration Proceedings in Mexico - The application is filed at the Mexican Institute of Industrial Property (Instituto Mexicano de la Propiedad Industrial) (IMPI). - A separate application has to be filed for each class. - Simple signed Power of Attorney with two witness is required. For litigation proceedings, a certified and legalized/Apostilled POA is required. - The application process comprises an administrative stage (the formal examination) and a substantive stage, which includes the examination of distinctiveness and a search for prior trademarks. Signs not deemed distinctive by the Examiner are rejected. Rejections can be appealed with the IP Branch of the Federal Tribunal on Administrative Matters and further appeal on the last available instance with the Collegiate Courts. - After registration, the trademark is published in the trademarks “Gazette”. - The processing time from first filing to registration or first office action is approx. 8 to 10 months. National Opposition Period As of August 30, 2016, a new opposition system is available. The Trademark Office will publish the trademark applications for opposition purposes within 10 business days from its filing, in the Gazette. Third parties can file an opposition within one month from publication in the Gazette and no extensions beyond this term are available. Oppositions will be published in the Gazette within the following 10 business days. Closing arguments will be accepted within two days after the disposal of evidence and at the call of the IMPI before a decision is rendered. Examination will resume on completion of the opposition process as oppositions will stay prosecution of the application.

Trademark Duration A trademark registration is valid for 10 years from filing date. The registration is renewable for periods of 10 years provided that use of the mark in each of the goods / services covered with the registration had taken place during the preceding three years. A declarationt of “real and effective” use needs to be filed along with the renewal application, together with a description of the specific goods / services upon which the mark is being effectively used.

The declaration of use must be submitted under oath after the three years of the granting date of the trademark registration. If such declaration is not filed within the three-month period after the three-year anniversary of the granting date, the trademark registration will lapse.

Trademark Applications Requirements for Filing Trademark Applications in Mexico.  The requirements for filing trademark/service trademark applications in Mexico are as follows:

1. Full name, domicile and state of incorporation of the applicant. 2. Full domicile where the goods are, or will be manufactured, or where the services are or will be rendered in Mexico or abroad. 3. Date of first use (if any) of the corresponding trademark in the Mexican Republic, indicating day, moth and year. A trademark application may be filed although it has not been used in Mexico. 4. Specific goods or services to be protected under the International Classification. Under Mexican Trademark Law, it is not possible to claim “all the goods/services” of the International classes, but rather you have to specify in detail the goods or services to be covered. 5. Trademark name or device that you wish to protect. 6. If Convention priority is to be claimed, the serial number, filing date and certified copy of the corresponding foreign application on the basis of which Convention priority is to be claimed. The certified copy, together with its literal Spanish translation, must be filed within a non-extendible term of three months counted from the filing date of the Mexican application. Convention priority must be claimed within six months after the filing of the foreign application. 7. A Power of Attorney simple signed with two witness.

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Patent in Mexico

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• Patent fees

Fees associated with filing patent applications in Mexico as well as other patent fees are available in the fee calculator .

• Term for filing a patent application in Mexico

The term for filing a patent application in Mexico claiming conventional priority is 12 months from the priority date. Restoration of this term is not possible.

• Filing requirements in Mexico

The official language of a patent registration in Mexico is Spanish. It is possible to file a patent application in any other language. The Patent Office will issue an office action requesting the translation and will grant the applicant two months for filing Spanish translation.

To obtain the date of filing, a patent application in Mexico should contain: -signed application; -technical documents (background of the invention, description, summary, claims) in any language; -drawings; -p ayment of official fees .

If priority is claimed, a certified copy of the Priority Document must be filed with the Mexican Patent Office within a non–extendible term of three months commencing on the filing date of the application.

If the application is filed in paper, an original Power of Attorney must be provided with the application. A scanned copy of the POA will be acceptable for the applications filed in electronic form. Late filing of this document is allowed within two months after the filing date should the Patent Office issue an office action requesting such a document. The POA must be signed by the person who grants it and two witnesses. Certification and legalisation of this document are not required.

• Examination of a patent application in Mexico

Patent applications in Mexico undergo formal and substantive examinations. Substantive examination is initiated automatically. No special request or fee is required. It is possible to request an accelerated examination under PPH.

• Novelty grace period

In Mexico, the novelty grace period constitutes 12 months before the Mexican filing date or before the priority date if the inventor or the successor to his rights or any third party who obtained the information about invention from the inventor/successor has made the invention known by any means of communication, by having displayed it at a national or international exhibition.

• Grant, validity term and maintenance fees

Patents in Mexico are valid for 20 years from the date of filing. Grant fee and annuities for the first five years should be paid within two months from the receipt of the Notice of Allowance. The succeeding annuities should be paid every five years before the expiry of the anniversary of the filing date. Annuities can be paid in an accumulated manner. Late payment of the annuities is possible within a grace period of six months after the due date provided that a surcharge is paid. 

• Duration of registration procedure

It takes an average of 4 years from filing to granting of a patent in Mexico.

• Utility model

It is possible to obtain utility model protection in Mexico. Utility model requirements are less stringent than for patents - novelty must be present and they must be industrially applicable, however an inventive step is not a necessity. Applications undergo both formal and substantive examination. As of November 5, 2020 the validity term of a utility model in Mexico is 15 years from the date of filing in Mexico, which is non-renewable. For those utility models registered before said date it is possible to prolong the validity term up to additional 5 years by way of paying the corresponding annuities within 6 months prior to expiration of 10 year validity term. It is also possible to convert a patent application into a utility model application. The request for conversion may be submitted within 3 months after the filing date or within 3 months after the Patent Office requires such transformation.

• Representation by a patent attorney

For foreign patent applicants, it is necessary to perform patent prosecution in Mexico through a patent attorney or agent practicing in Mexico.

•  Notes

1. Online search database for Mexican Patents . 2. After a period of 18 months from the filing date or the priority date, the application is published in the Industrial Property Gazette. It is possible to request earlier publication for patents, but this option is not available for utility models.

Brief summary is based on the information provided by WIT LAW AND BUSINESS CONSULTANTS on 09.02.2024 Please contact us if the above information is not in conformity with Mexican IP Laws

• Patent Laws, Regulations, Policies & Procedures
• Manual of Patent Examining Procedure

Chapter 0300

Ownership and assignment.

• 301.01-Accessibility of Assignment Records
• 302.01-Assignment Document Must Be Copy for Recording
• 302.02-Translation of Assignment Document
• 302.03-Identifying Patent or Application
• 302.04-Foreign Assignee May Designate Domestic Representative
• 302.05-Address of Assignee
• 302.06-Fee for Recording
• 302.07-Assignment Document Must Be Accompanied by a Cover Sheet 
• 302.08-Mailing Address for Submitting Assignment Documents
• 302.09-Facsimile Submission of Assignment Documents
• 302.10-Electronic Submission of Assignment Documents
• 303-Assignment Documents Not Endorsed on Pending Applications
• 304‑305-[Reserved]
• 306.01-Assignment of an Application Claiming the Benefits of a Provisional Application
• 307-Issue to Non-Applicant Assignee
• 308-Issue to Applicant
• 309-Restrictions Upon Employees of U.S. Patent and Trademark Office
• 310-Government License Rights to Contractor-Owned Inventions Made Under Federally Sponsored Research and Development
• 311-Filing of Notice of Arbitration Awards
• 312-[Reserved]
• 313-Recording of Licenses, Security Interests, and Documents Other Than Assignments
• 314-Certificates of Change of Name or of Merger
• 315-Indexing Against a Recorded Certificate
• 316-[Reserved]
• 317.01-Recording Date
• 317.02-Correction of Unrecorded Returned Documents and Cover Sheets
• 317.03-Effect of Recording
• 318-Documents Not to be Placed in Files
• 319-[Reserved]
• 320-Title Reports
• 321‑322-[Reserved]
• 323.01(a)-Typographical Errors in Cover Sheet
• 323.01(b)-Typographical Errors in Recorded Assignment Document
• 323.01(c)-Assignment or Change of Name Improperly Filed and Recorded by Another Person Against Owner’s Application or Patent
• 323.01(d)-Expungement of Assignment Records
• 324-Establishing Right of Assignee To Take Action in Application Filed Before September 16, 2012
• 325-Establishing Right of Assignee To Take Action in Application Filed On or After September 16, 2012

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Mexico patent assignment requirements [With Pictures]

Table of Contents

How do I file a patent in Mexico?

What does the us and mexico trade, what is intellectual property, what is intellectual property rights, does patent assignment need to be notarized, does an ip assignment need to be notarized, should patent assignments be notarized, is mexico part of wipo, what are intellectual property rights in india, what is intellectual property law in india, how do you protect a patent internationally, are us patents valid in mexico, can you get a worldwide patent, does mexico have a patent system, do patent assignments need to be recorded, how long does it take to get a patent in mexico, is mexico an ip country, is intellectual property protected in mexico, can a u.s. patent be enforced in other countries, can i copy a patent from another country.

Last updated : Aug 8, 2022

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if you're planning on applying for residency in mexico in 2022 there are some big changes to the process that you need to know about and i'm here to tell you for the best advice about moving to mexico subscribe to my channel and hit the bell to be notified when i upload new episodes every monday and thursday if you're new to my channel welcome and if you've been here before welcome back my name is alex and i moved to mexico from the us in 2017. i've called keretro home ever since the internet my inbox has absolutely been buzzing about changes to the mexico residency process specifically it changes increases to the financial requirements for proving economic solvency while that's definitely the most talked about change it is not the only one and in today's video i'll be covering seven must know changes about the mexico residency process for 2022 i'll also be sharing a unique opportunity to get real-time answers to your most pressing questions about the mexico residency process from an immigration advisor with 15 years of experience this video is one of several that i have here on my channel about getting your residency in mexico and if you are totally new to the process just getting started in your journey then this playlist here is something you are definitely going to want to check out number one increases to financial requirements there are several different ways to qualify for a mexico residency visa but by far the most popular the most common way of qualifying is demonstrating economic solvency this year 2022 temporary resident applicants are reporting consulates asking them to show between twenty four hundred and twenty seven hundred dollars usd in monthly income the exact amounts vary from consulate to consulate for example at the mexican consulate in detroit michigan where i applied for my temporary residency visa back in 2020 temporary visa applicants must show a minimum income of two thousand five hundred and thirteen dollars for the past six months after taxes that's a major increase from the one thousand six hundred and thirty four dollars per month i had to show when i applied back in twenty twenty this page was only updated on february 4th prior to that it still showed the old financial requirements so no wonder there's been a lot of confusion about this change now if you decide to go the savings investments route then you've got to show 45 000 usd in those accounts for the last 12 months again this can vary from consulate to consulate in detroit you have to show your last 12 months of your bank statements with a minimum average balance of 41 780 usd per month for permanent resident applicants some consulates are asking to see between 4 300 and forty five hundred dollars in monthly income and if you are going that savings investment route you've gotta show a hundred and eighty thousand dollars usd in savings and investments over the past 12 months if possible and i think that this will likely be my standing advice for all time if possible i highly recommend trying to reach out to the consulate where you plan on applying to have an email correspondence with someone about that specific consulate's financial requirements for proving economic solvency whatever conversations you have whatever exchanges take place be sure to have a record of them print those emails out whatever financial documents they okayed whatever amounts that they said that you had to show bring proof of those conversations to your visa appointments and say hey i talked to so-and-so and this is what they told me this is what i've got of course not all consulates are communicative sometimes it's like talking to a brick wall but you are likely to have the best luck emailing rather than trying to call most consulates do not answer their phones with all the changes happening to the mexico residency process you deserve the chance to talk to someone who is communicating with consulates and immigration officials on a daily basis which is why at 7 00 pm central time on tuesday february 15th i am hosting a special virtual event via zoom a mexico residency q a with yvonne pavan from host relocation now avon is an immigration advisor with more than 15 years of experience helping foreigners navigate the mexico residency process she's going to talk about the most common mistakes that foreigners make when applying for residency in mexico and after her presentation you'll have a chance to ask her your own questions about getting residency in mexico this special virtual event is the first in an exclusive guest series for the move to mexico membership head to the link in the description for more information number two permanent resident applicants must be retired this isn't an entirely new change i was hearing from subscribers back in 2021 back in 2020 that even though they met the financial requirements for permanent residency they were being denied those visas instead being told by the consulates to go for temporary residency because they weren't retired yet so some consulates i don't want to go as far as to say all consulates it's very hard to say all consulates about anything in the mexico residency process but some consulates do ask do demand that permanent resident visa applicants are retired remember that every mexico visa application is dealt with on a per case basis and your application both for your visa and for your residency card here in mexico those are at the discretion of the official that you are meeting with at the time so sometimes it all comes down to the person who you are sitting across the desk from number three most inm offices no longer accept walk-ins the majority of inm offices across mexico are no longer accepting walk-ins that includes queretro now this is a big big change because if you remember the videos that i did back when i applied for my residency when i went to imm here in kerethro to get my residency card i had to wake up at the crack of dawn to wait in line i think i got there at something like that at 5 30 in the morning waiting in line outside of i m to get in that's just how things were done back then i m has a new system in place now and you've got to make an appointment online ahead of time and this new way is simpler i put simpler and air quotes there because it gets a little complicated with timing you have got to make an appointment in some cases in the case of queretro you've got to make an appointment a month and a half out they are really really booked up over there since you only have 30 days upon entering mexico with your residency visa to go to inm to start the second part of the process and get your residency card a month and a half whoa yeah do the math on that one this means making your appointment at inm while you are still in your home country before you travel to mexico the inm offices in mexico that are still accepting walk-ins are very few and far between so if you're thinking that you might go for that option i recommend checking with the foreigner facebook groups in that area usually those are a good source of on the ground information number four new prices for residency cards in 2022 a one-year temporary res

Thanks for your comment Beata Brzostowski, have a nice day. - Luanne Nichole, Staff Member

hi i'm darlene hello marty so we recently flew to mexico and found that there was a lot of questions and confusions around the entry requirements so today we're going to try and clear that up for you the information we've provided is correct as of this date so before you travel check with your own government and mexican authorities we've added all the links to the different documents and the websites in the description box below ready for takeoff as of december 2021 travel to mexico is allowed mexico does not require tourists to be vaccinated and no cova tests are required prior to entry no quarantine is required however the country you're departing from may have other restrictions and requirements so double check on your government websites before you travel now let's talk about what's actually required everyone must have a passport that is valid for the entire length of their state now this next part is specifically for canadians canadians must be double vaccinated to get on an airplane you must download and show your federal proof of vaccination qr code at check-in and canadians must also fill out the federal declaration and i've added this link in the description below print that out and bring it with you to show at check-in as well at this time americans do not need to show proof of vaccination to get on a flight everyone including children must fill out the mexican visitor permit also known as the fmm card within 30 days of traveling most airlines no longer hand this form out on the airplane so it's strongly suggested that you fill it all online before you go then print it out in black and white or color the link is below you'll hand this over at mexican immigrations where they will tear it in half keep the left half and return the right half to you do not lose this you will need to hand this in when you depart mexico if you lose it it will cost you a lot of money a lot of time and a big headache i usually take a paper clip and put it inside my passport and put my passport in the safe for the entire duration of my stay if you're finding this video informative please hit the like button and stick around to the end of this video for some special tips for anyone traveling internationally every traveler must complete an online mexican health assessment no more than 12 hours before your departure time the link is found below set up an account in advance you can add all family members traveling together to the account once the form is complete a digital qr code will be generated one for each person which must be shown when checking in and again when you pass through customs in mexico there is a customs declaration for mexico we had this filled out although no one asked us for it so at this point we're really not sure if it's still required but saying that i will still fill it out and have it with me just in case the link is below if you are enjoying this video please hit the like button and don't forget to subscribe to our channel so here's just a recap of the three forms that the mexican government requires for entry one the mexican visitor permit or fmm card two the health questionnaire three the customs form these are in addition to any forms required by your own government as promised here's those useful tips for international travel canadians should register with canadians abroad u.s citizens should register with the smart traveler enrollment program both of those links are below this will help your country get in touch with you or assist you in case of an emergency natural disaster civil unrest or gee i don't know a pandemic make sure your travel insurance is not affected by government travel advisories leave a copy of your itinerary and travel plans with a family member if you're traveling for an extended period of time it's a good idea to designate one family member as someone you will contact every two or three days just a quick text is all is needed take photos on your phone of your passport driver's license and credit cards look for our next video on what's required when you leave mexico coming back to the united states or canada mucho gracias

Thanks Brittney your participation is very much appreciated - Luanne Nichole

About the author

Luanne Nichole

I've studied ethnoecology at Florida Gulf Coast University in Fort Myers and I am an expert in communications system. I usually feel touched. My previous job was government property inspectors I held this position for 11 years, I love talking about fishfarming and fantasy sports. Huge fan of Linkin Park I practice shuffleboard and collect disney pin trading.

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How do I file a patent in Mexico What does the US and Mexico trade What is intellectual property What is intellectual property rights Does patent assignment need to be notarized Does an IP assignment need to be notarized Should patent assignments be notarized Is Mexico part of WIPO What are intellectual property rights in India What is intellectual property law in India How do you protect a patent internationally Are US patents valid in Mexico Can you get a worldwide patent Does Mexico have a patent system Do patent assignments need to be recorded How long does it take to get a patent in Mexico Is Mexico an IP country Is intellectual property protected in Mexico Can a U.S. patent be enforced in other countries Can I copy a patent from another country

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