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In addition to other legal requirements, Mexican Industrial Property Law (Ley de Propiedad Industrial) provides that a necessaryrequirement for obtaining a patent on a new invention is that such invention be considered “novel” and something that is not known in the“state of the industry or art,” which is defined as technical knowledge “together with other technical information that has been made publicthrough oral or written descriptions, or by any other means of communication or information in Mexico or abroad”. Keep in mind that thenovelty requirement is mandatory, making it important for any inventor to be careful to protect information related to their invention andpatent registration applications. An applicant who fails to do so risks having such invention treated as not novel and having theirapplication rejected. One exception to the above may be found in Article 18 of the Industrial Property Law, which establishes the exceptionfor previously disseminated information, such as information released at a technical exposition or fair, so long as such occurs within twelvemonths prior to the filing of an application for patent registration.
Mexico, as a party to the Kyoto Protocol, has taken steps to provide incentives to the business and public sectors to take advantage ofcredits and income offered by the Clean Development Mechanism (Mecanismo para un Desarrollo Limpio or MDL), which could generateannual income for Mexico of up to $330 million. The Intersecretarial Commission on Mexican Climate Change (Comisión IntersecretarialMexicana de Cambio Climático or CICC) has granted 184 Approval Letters for projects, of which 16 have already obtained CER’sEmissions Credit Certificates and 100 of which are in the process of obtaining such CER’s. The main areas in which projects are beingdeveloped include management of waste from cattle and hog farms; methane from sanitary landfills; and energy efficiency and co-generation projects. The cycle for developing an MDL project is not simple. Thus, it is important to have adequate technical and legalassistance to create the draft project, so that all required elements of the project are met by the Designated Operating Entity (EntidadOperacionales Designada or DOE). Subsequently, in the DOE’s review of the project, it is important to have an expert to confirm thetechnical and legal aspects of the project development plan in order to ensure the success of the project. Finally, it is important to obtain aProject Approval Letter (Carta de Aprobación del Proyecto) from the CICC, which is normally handled by an environmental expert whoprocesses such through the CICC, in order to avoid complications and project delays.
On December 28, 2007 Rule 2.2.4 of the General Rules Governing Foreign Commerce (Reglas Generales en Materia de Comercio Exterior2007) entered into force, as published by the Department of Finance and Public Credit (Secretaria de Hacienda y Crédito Publico or SHCP)in the Official Journal of the Federation (DOF) on June 27, 2007. Such rule provides changes to the causes for which one’s GeneralImporters or Specific Sectors Importers Registry may be suspended. As a result of these amendments, a cause for suspension includes ataxpayer’s failure to obtain an Advance Electronic Signature authority (Firma Electrónica Avanzada) issued by the TaxpayerAdministration Service (Servicio de Administración Tributaria or SAT). The new rule also defines the situations in which an immediatecancellation of the Importers’ Registry may take place, with no prior notice from the SHCP. Some of the causes of suspension include ataxpayer’s failure to maintain in good standing their Federal Taxpayer Registration (RFC) and Advanced Electronic Signature (FEA). Theamendments provide procedures for the local SAT office to verify a taxpayer’s status and potentially avoid the suspension, which include:1) requesting a printout of the current RFC status; 2) verifying the printout and the database of the Mexican SAT to confirm the taxdomicile and that all tax branches reflect the status of “verified” (localizado); 3) requesting a verification visit for any offices that do notappear as “verified”; 4) verifying that someone from the company is present at the visit in order to confirm that the location of the office hasbeen properly verified; 5) verifying that all changes of name, corporate purpose, etc. have been filed by the taxpayer; 6) verifying if any taxreturns are pending and, as the case may be, filing any such pending returns; 7) verifying that the FEA of the company is current or, makessuch current as quickly as possible (it is important to note that the Digital Certificate of the FEA expires two years after it is issued, so it isimportant to verify that such FEA registration is current; if the FEA certificate has lapsed, the taxpayer should immediately renew such);and 8) verifying if the taxpayer has any pending tax credits, in which case it should file a reimbursement request and make anycorresponding clarifications. Finally, keep in mind that the person appearing at the local SAT office should be a legal representative of thecompany and should bring his or her official identification and an original or certified copy of their notarial power of attorney.Appointments to meet with the local SAT office may be made on the SAT’s webpage ( www.sat.gob.mx ) or by telephone: 1-800-INFOSAT(I-800-463-6728).
Parties contributing to Mexican trusts (trustors or fideicomitentes), trustees and beneficiaries of trusts created under Mexican law shouldverify that such trusts do not have pending trustee fees due and owing based on recent amendments to the General Law of CreditInstruments and Transactions (Ley General de Títulos y Operaciones de Crédito) published at the beginning of this month, which authorizebanking institutions serving as trustees of Mexican trusts to dissolve any trust in which late trustee fees are more than three years past due.
In order to facilitate and better organize the process of authorizing a representation office or establishment in Mexico of companies basedabroad, an amendment to the Law of Credit Institutions (Ley de Instituciones de Crédito) was published establishing that the MexicanNational Banking and Securities Commission (Comisión Nacional Bancaria y de Valores or CNBV) is the competent authority to reviewand authorize representation offices in Mexico, instead of the Mexican Department of Finance and Public Credit (Secretaria de Hacienda yCrédito Publico) making the CNBV and the Mexican Central Bank, Banco de México, responsible for regulating such representationoffices. The amendment will enter into force 120 days following its publication.
