Intellectual property law in Mexico

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Industrial property law in Mexico has been changing in order to be updated with the international tendencies. The process of integration in NAFTA (North American Free Trade Agreement) is one these international factors that have affected the law. It has defined aspects of the current law, and especially its limitations in relation to foreign investments. The law is designed to protect inventions. Inventions are classified according to this law in: patents, utility models and industrial designs. Each of them has different definitions and characteristics that the law explains. This article includes some background, legal definitions and effects of the law.

Contents

Background

The oldest Mexican legal instrument directly related to industrial property is the “Law on property rights for inventors” which dates from 1832. It gave protection to certain types of ideas and inventions. It had a strong influence from Spanish law. In 1889, during the presidency of Porfirio Díaz, this law was replaced by the “Law of manufacturing trademarks” which had French influence. Although it has since been superseded, some aspects of this law were kept and used in further laws, such as the 1890 “Law of Patents and Privilege.” This remained in effect with almost no change in its essence until the “Law of Industrial Property" of 1943.

In 1903, the “Law of Industrial Trademarks and Commerce” included concepts of the international tendencies that had been unified by the Brussels Review (1900) and the Convention of Paris Union (1883). It has more technical features, introducing new elements like advertising and branding. In 1928, new laws of patents, invention, trademarks advertising and branding are created. In matter of patents, it includes a testing procedure to determine if the “invention” was truly new. It included as well judicial procedures to attend civil controversies and the compulsory use of trademarks for some merchandize. These laws of 1928 contained the world advances made manifest in the Convention of Paris Union (1983), the Washington Review (1911) and the Hague Review (1925).

The law of Industrial Property of 1943 was influenced by London review of the Convention of Paris Union (1934). The law was criticized for giving "exaggerated protection" and other problems, so it was modified many times. The positives and the corrections made to the law served on the basis of the New Law of Inventions and Trademarks (1976). This law had influence as well from the agreement of Cartagena. It explored as well new socialist tendencies, like regulation for abuses and monopolies. [1]

From 1976 until 1991 the Law of Invention and Trademarks was current, just some modifications were made. In 1991,the New Law of Industrial property was issued. It is the current law that has been thoroughly reviewed and modified, especially to conciliate with North American standards in the process of the NAFTA (North American Free Trade Agreement). [2]

According to Mexican law named “Ley de propiedad industrial” (issued in 1991 and thoroughly modified for NAFTA standards) the author or the person who creates an invention, a utility model or an industrial design has the right to exclusively exploit it for his benefit by himself or by someone authorized by him. (Artículo 9) Patents apply to inventions. Registration applies to utility models and industrial designs. A physical person or a corporation can be given a patent or registration. (Artículo 10) An invention is considered by law as “any human creation that allows transforming matter or the energy present in the natural environment, for human use, and to satisfy needs.” They have to be new or created as a result of an inventive activity, and applicable to industrial purposes. The law considers a utility model “the objects, devices, machines or tools that after being modified in their disposition, configuration, structure or form, present a different function from the parts that make them up, or utility advantages” [3]

In Mexican law, the industrial designs are divided in industrial drawings and industrial models. The industrial drawings are a combination of figures, lines or colors that are added to a manufactured product, giving to it a characteristic aspect. The industrial models are three-dimensional shapes that function as a standard for the manufacture of a product, giving to it a specific appearance, without technical effects. A trademark is a symbol used to differentiate a product or service from competitors in the marketplace. [3] The validity time of a patent, a utility model or an industrial design is not extendible and is counted from the moment of the request. A patent right is valid for 20 years, while a utility model is valid for 10 years and an industrial design is valid for 15 years. In the case of a trend the validity time is 10 years. It is counted from the moment of the request and can be extended for the same period of 10 years. [3]

Effects of NAFTA on the Mexican Industrial Property Law

Before the law of 1991 was modified in 1994, the Mexican legislation considered that a Mexican judge had to attend all conflicts related to industrial property. Compulsory, the Mexican legislation had to attend this kind of conflicts in Mexico. However, the reforms made in 1994 for integration with NAFTA, allow the parts involved in a contract to resolve their conflicts through an arbitration court. This arbitration court is different from the Mexican judicial system. There is an International legislation that is based on the international agreements among countries. In the case of NAFTA, the bases are established in the chapter XI. Then the Mexican legislation on expropriation and intellectual property do not apply for foreign investments in Mexico. According to NAFTA agreements, if one country cannot give the minimum guaranties to an investor, then the investor can go to an arbitration court. The arbitration court will defend the interests of the investor, without taking into account the national legislation of the defendant country. In Mexican case, the decisions could imply that the executive power revoke, with the approval of the senate, a law that has been issued by both cameras of representatives. On the other hand, Mexico only gives a patent right to individuals that accept the national legislation. Then Mexico establishes the restrictions for that patent. However the Mexican legislation could be just a reference after the patent is given, because the protected object of the patent is within an investment. The issues related to the investment are attended by the international agreements or the International Law. Countries may have the right to demand that a registered industrial property is used and exploited. They may have the right to avoid abuses that affect negatively the national interests of the country. There are some specific cases in which the country can establish some obligations related to the use of the patent and avoiding abuses of it. In these cases the country has to pay a compensatory to the investor. [4]

Registering software

Software and any other kinds of computer programs can be registered in Mexico by filing a copyright application with Mexico's Copyright Office (Instituto Nacional del Derecho de Autor). [5]

See also

Related Research Articles

Intellectual property Notion of ownership of ideas and processes

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets. Early precursors to some types of intellectual property existed in societies such as Ancient Rome, but the modern concept of intellectual property developed in England in the 17th and 18th centuries. The term "intellectual property" began to be used in the 19th century, though it was not until the late 20th century that intellectual property became commonplace in the majority of the world's legal systems.

Patent Intellectual property conferring a monopoly on a new invention

A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing an enabling public disclosure of the invention. In most countries patent rights fall under civil law and the patent holder needs to sue someone infringing the patent in order to enforce his or her rights. In some industries patents are an essential form of competitive advantage; in others they are irrelevant.

An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on 20 March 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property. The Convention is currently still in force. The substantive provisions of the Convention fall into three main categories: national treatment, priority right and common rules.

In patent, industrial design rights and trademark laws, a priority right or right of priority is a time-limited right, triggered by the first filing of an application for a patent, an industrial design or a trademark respectively. The priority right allows the claimant to file a subsequent application in another country for the same invention, design, or trademark effective as of the date of filing the first application. When filing the subsequent application, the applicant must claim the priority of the first application in order to make use of the right of priority. The right of priority belongs to the applicant or his successor in title.

Industrial property is one of two subsets of intellectual property, it takes a range of forms, including patents for inventions, industrial designs, trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, geographical indications and protection against unfair competition. In some cases, aspects of an intellectual creation, although present, are less clearly defined. The object of industrial property consists of signs conveying information, in particular to consumers, regarding products and services offered on the market. Protection is directed against unauthorized use of such signs that could mislead consumers, and against misleading practices in general.

Intellectual property rights (IPRs) have been acknowledged and protected in China since the 1980s. China has acceded to the major international conventions on protection of rights to intellectual property. Domestically, protection of intellectual property law has also been established by government legislation, administrative regulations, and decrees in the areas of trademark, copyright, and patent. This has led to the creation of a comprehensive legal framework to protect both local and foreign intellectual property. Despite this, copyright violations are common in the PRC, The American Chamber of Commerce in China surveyed over 500 of its members doing business in China regarding IPR for its 2016 China Business Climate Survey Report, and found that IPR enforcement is improving, but significant challenges still remain. The results show that the laws in place exceed their actual enforcement, with patent protection receiving the highest approval rate, while protection of trade secrets lags far behind.

A compulsory license provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of adjudication or arbitration. In essence, under a compulsory license, an individual or company seeking to use another's intellectual property can do so without seeking the rights holder's consent, and pays the rights holder a set fee for the license. This is an exception to the general rule under intellectual property laws that the intellectual property owner enjoys exclusive rights that it may license – or decline to license – to others.

Design patent legal protection for the ornamental design of a functional item

In the United States, a design patent is a form of legal protection granted to the ornamental design of a functional item. Design patents are a type of industrial design right. Ornamental designs of jewelry, furniture, beverage containers and computer icons are examples of objects that are covered by design patents.

A utility model is a patent-like intellectual property right to protect inventions. This type of right is available in many countries but, notably, not in the United States, United Kingdom or Canada. Although a utility model is similar to a patent, it is generally cheaper to obtain and maintain, has a shorter term, shorter grant lag, and less stringent patentability requirements. In some countries, it is only available for inventions in certain fields of technology and/or only for products. Utility models can be described as second-class patents.

Japanese patent law is based on the first-to-file principle and is mainly given force by the Patent Act of Japan. Article 2 defines an invention as "the highly advanced creation of technical ideas utilizing the law of nature".

Intellectual property law in Romania has developed significantly in the period since the Romanian Revolution of 1989 because of the need to enforce various regional and international treaties and agreements, such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), the European Directives on Biotechnological Inventions, on Trademarks and Geographical Indications, and on Supplementary protection certificates, the Trademark Law Treaty, the Patent Law Treaty, and the European Union regulation on the Community Trademark, and the need to harmonize domestic patent law with the European Patent Convention (EPC) and with the European Union.

This is a list of legal terms relating to patents. A patent is not a right to practice or use the invention, but a territorial right to exclude others from commercially exploiting the invention, granted to an inventor or his successor in rights in exchange to a public disclosure of the invention.

The following outline is provided as an overview of and topical guide to intellectual property:

TRIPS Agreement International treaty on intellectual property protections

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It sets down minimum standards for the regulation by national governments of many forms of intellectual property (IP) as applied to nationals of other WTO member nations. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO.

Iran is a member of the WIPO since 2001 and has acceded to several WIPO intellectual property treaties. Iran joined the Convention for the Protection of Industrial Property in 1959. In December 2003 Iran became a party to the Madrid Agreement and the Madrid Protocol for the International Registration of Marks. In 2005 Iran joined the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, which ensures the protection of geographical names associated with products. As at February 2008 Iran had yet to accede to The Hague Agreement for the Protection of Industrial Designs.

Investor-state dispute settlement (ISDS) or investment court system (ICS) is a system through which investors can sue nation states for alleged discriminatory practices. ISDS is an instrument of public international law and provisions are contained in a number of bilateral investment treaties, in certain international trade treaties, such as the USMCA. A version of this mechanism was also present in the older NAFTA, and the CPTPP and CETA agreements. ISDS is also found in international investment agreements, such as the Energy Charter Treaty. If an investor from one country invests in another country, both of which have agreed to ISDS, and the host state violates the rights granted to the investor under the treaty, then that investor may bring the matter before an arbitral tribunal.

CCPIT Patent & Trademark Law Office

CCPIT Patent & Trademark Law Office is an intellectual property law firm headquartered in Beijing, China. It has over 480 staff including 216 patent and trademark attorneys, among whom 56 are qualified lawyers, and also has around 35 patent engineers. CCPIT Law Office provides prosecution, litigation, administrative enforcement, transaction and consultation services relating to patents, trademarks, copyright, trade secrets, trade dress, domain names, anti-unfair competition, licensing and other intellectual property-related matters.

The Japan Patent Attorneys Association (JPAA), headquartered in Tokyo, Japan, is the only one national, professional bar association of Japanese patent attorneys (Benrishi) with approximately 10,000 members.

Republic Act No. 8293, otherwise known as The Intellectual Property Code of the Philippines lays down the rules and regulations that grant, and enforce patents in the Philippines. Patents may be granted to technical solutions such as an inventions, machines, devices, processes, or an improvement of any of the foregoing. The technical solution must be novel, innovative, and industrially useful. In order for a technical solution to be granted a patent, the inventor must file an application to the Bureau of Patents, which will examine, and in some cases, grant its approval. The law is designed as to foster domestic creativity, to attract foreign investors, and to motivate inventors to release their products for public access.

References

  1. ↑ Sepulveda, Cesar (1981). El Sistema Mexicano de Propiedad Industrial. Mexico City: Editorial Porrúa. pp. 1–35.
  2. ↑ Barra Mexicana, Colegio de Abogados (1997). La protección de los derechos de propiedad industrial de Propiedad Industrial. Mexico City: Editorial Themis. p. 23.
  3. 1 2 3 "LEY DE LA PROPIEDAD INDUSTRIAL" [Law of Industrial Property](PDF) (in Spanish). Mexico: Camara de Diputados de Mexico. 2010-06-28. Archived from the original (PDF) on September 22, 2010. Retrieved October 25, 2010.
  4. ↑ Pérez Miranda, Rafael (1999). Propiedad Industrial y Competencia en Mexico. Mexico City: Editorial Purrúa. pp. 66–68.
  5. ↑ Homepage of Mexico's Copyright Office
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