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Mexican law provides that an invention (patent, business model or industrial design) must meetthe following requirements before being eligible for registration:1. That the invention at issue is the result of an invention process. This means thatinventions that can be registered must be the product of significant research anddevelopment efforts and not a simple idea that occurred to the inventor in a singlemoment.2. That the invention at issue has an industrial (business) application. This requirementintends to reduce the administrative workload for the registration of inventions; that isto say, to avoid the study of inventions that, notwithstanding their merit as aninvention, lack any application that is useful for the titleholder or society in general.3. That the invention at issue be novel. Novelty is an indispensable requirement for theregistration of an invention. Mexico’s Intellectual Property Law defines “new” as allthat is unknown to the “technical state,” and “technical state” is further defined as thetechnical knowledge that has been published orally or in writing, used or sharedthrough any media or information channel in Mexico or abroad. It is important to notethat this requirement cannot be circumvented; therefore, the title holder of aninvention must be very careful in not disclosing his or her invention before applyingfor the invention’s registration; otherwise, such invention may not be considered anovelty. Notwithstanding the above, article 18 of the law cited above provides theforms of prior disclosure that recognize novelty in registering patents.4. That the invention can be registered, which means that the invention can be registeredpursuant to articles 16 and 19 of the Intellectual Property Law. For example, aninvention that consists of a process that is essentially biological, an animal species,parts of the human body, or theoretical or scientific principles, mathematical methodsor surgical treatment methods for therapy or diagnosis and any other invention forwhich a patent cannot be obtained does not meet this invention registrationrequirement.
On July 14, 2009, the Department of Economy (Secretaría de Economía or SECON) publishedin the Official Journal of the Federation orders for the suspension of certain IMMEX programsof various program participants. The reasons given for suspending such participant’s programscan be classified into two categories: i) failure to submit the annual sales and exports report forthe fiscal year of 2008; and/or ii) failure to update their electronic signature, maintain an activetax identification number (Registro Federal de Contribuyentes or RFC), and/or to update theregistered domicile and the domiciles of any additional locations for tax purposes.The first legal basis for suspension is set forth in article 25 of the Decree for the Development ofthe Manufacturing Industry, Maquiladora and Export Services (Decreto para el Fomento de laIndustria Manufacturera, Maquiladora y de Servicios de Exportación or IMMEX Decree),which requires IMMEX Program participants to submit to the SECON an annual report inelectronic format with information concerning total sales and exports of the prior fiscal year.Such provision sets the last business day of the month of May as a deadline to submit suchreport. The second legal basis for suspension is set forth in article 11, section III of the IMMEXDecree which requires all IMMEX Program participants to have an electronic signature at all times, an active RFC and domicile for tax purposes and all additional locations registered,accounted for and active in the RFC. Pursuant to article 29 of the IMMEX Decree, the SECON isresponsible for enforcing compliance with such obligations on an annual basis. In order to curethe second cause for suspension, IMMEX program participants that are listed in such order mustvisit the web page www.siicex.gob.mx to find out the specific cause for suspension that appliesto each individual case and cure such default at the corresponding Local Taxpayer AssistanceAdministration (Administración Local de Asistencia al Contribuyente). The second article of thepublished order allows those participants that had their IMMEX programs suspended to submittheir annual report, update their electronic tax signature or cure any discrepancies with their RFCno later than the last business day of August, 2009. The companies that fail to comply on timewith the necessary requirements to revoke the suspension of their IMMEX Programs will havetheir programs cancelled permanently on September 1, 2009.We recommend that our clients and readership of the CCN Mexico Report review such publishedorder to check whether their company appears on such list. Our firm will be available to assist inavoiding the permanent cancellation of IMMEX Programs.
On July 9, 2009, various amendments to the Social Security Law were published in the OfficialJournal of the Federation. One amendment, in particular, provides that companies hiringpersonnel services from an employee outsourcing company will assume, by operation of law, allemployer obligations set forth in the Social Security Law with regard to the employees from theoutsourcing company that are subordinate to such company contracting the outsourcing ofpersonnel. The foregoing applies if the outsourcing company defaults on its obligations undersuch law and when the Mexican Social Security Institute provides notice to such outsourcingcompany requiring compliance with such law and the outsourcing company fails to comply withthe required actions contained in such notice. Companies that hire employee outsourcingcompanies will have to provide, on a quarterly basis, a list of all executed contracts of suchnature from the previous quarter within the first 15 days of the months of January, April, Julyand October. This amendment also provides for fines ranging from 20 to 350 times the minimumsalary in effect in the Federal District in the event that companies hiring employee outsourcingcompanies fail to submit the reports requested in such amended law. Moreover, the amendmentprovides that the employee outsourcing companies will have an employer registration for each ofthe five risk categories provided by said law, when necessary, in terms of risk categories underwhich the companies benefiting from such services are registered. Employee outsourcingcompanies shall review on an annual basis the incidence of casualty on each one of the employerregistrations assigned to such company. The measures described above intend to preventemployee outsourcing companies from defaulting on their obligations mandated by law and toprotect the rights of employees hired under this system.
On March 4, 2009, the First Chamber of Mexico’s Supreme Court of Justice (Suprema Corte deJusticia de la Nación) issued case decision number 1a./J.96/2008, under the title “Bonds. Thenotice requirement provided in article 118 Bis of the Federal Surety Institutions Law is acondition precedent that must be met before asserting the collection instrument provided inarticle 96 of such law.” In this decision, the Court held that article 118 Bis of the Federal SuretyInstitutions Law does not contradict the provisions of article 96 of such law because theobligation that a surety company has to provide notice to the bond holder of the claim madeagainst the bond by the beneficiary of such bond is a condition precedent that must be met beforethe surety company validates the instrument purporting to require performance of the bondapplicant, obligor, indemnitor or guarantor, because the above cited article 118 Bis of the FederalSurety Institutions Law does not leave any room for any interpretation to the contrary. Mexico’sSupreme Court explains that in the event a surety institution fails to meet the precondition setforth in article 118 Bis of said law, the collection document would be null given its failure tostrictly comply with the condition precedent provided by such law before proceeding withcollection.
