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According with the provisions of Mexico’s Industrial Property Law (LPI), inventions are patentable if: 1) they are the result of acreative activity; 2) have an industrial application; 3) and, are new. Five exceptions to such provision are set forth in Article 16 of theLPI. Additionally, Article 19 of the LPI provides cases for which inventions cannot be considered for registration. Similarly,legislation in this area provides that once a patent application is filed with the Mexican Institute of Industrial Property (“InstitutoMexicano de la Propiedad Industrial” or “IMPI”) an administrative review must be carried out. Such administrative review basicallyconsists of a formal examination of the filed application documents, which is followed by the publication of the patent application inthe Official Gazette of the IMPI, usually within 18 months from the filing date (such publication can occur before such 18-monthperiod upon request to the IMPI). This has been the normal patent registration process for a long time. As of last June, however, adecree was published in which several articles were added to the LPI. The highlight of such decree, among others, is the new Article52a, which states that within six months, counted from the date of publication of any patent application published in the OfficialGazette, the IMPI may receive public comment concerning the application’s compliance with the provisions set forth in Articles 16and 19 of the LPI (conditions for obtaining a patent on inventions that are considered patentable). Comments that the IMPI receivespursuant to Article 52a do not mandate the IMPI to rule in a certain way. Nevertheless, this is the first time that Mexico considers thepossibility of allowing an interested third party to submit some sort of “opposition” to the granting of a patent. This may be animportant step (and with time these “oppositions” may occur more often) that could spread to other areas of industrial property,including trademark registrations, as in many other countries.
Recently, the Second Chamber of Mexico’s Supreme Court of Justice (SCJN) issued a ruling on labor matter number 2a./J.100/2010under the heading, Notice of employment termination. The affidavit, in which delivery of such is made to the employee, constitutessufficient proof to satisfy the requirement provided in Article 47 of the Federal Labor Law. In this regard, Mexico’s highest courtruled that it is appropriate to deliver the notice of employment termination by and before a Mexican notary public. Mexico’s FederalLabor Law requires only that the termination notice be made in writing and made known to the employee, but such law does notprovide for the appropriate means of delivery of such notice. Additionally, the SCJN analyzed in its opinion various provisions setforth in the Federal Labor Law and the Notary Law for the Federal District as to what documents are public in terms of such laws.Based on its analysis, the SCJN concluded that an affidavit stating the delivery of a notice of employment termination is a publicdocument with effective evidentiary validity, which renders unnecessary its ratification before the Labor Board. The foregoing holdingis still pending publication in the Judicial Weekly of the Federation.
The Official Journal of the Federation published on July 29, 2010 an amendment to article 17 of the Constitution of the UnitedMexican States to create in Mexico the legal concept of class action lawsuits, i.e. lawsuits brought by a group of people that meet auniform set of conditions arising from the same cause that resulted in losses or claims. The constitutional reform limits class actionlawsuits to proceedings regarding federal law, such as those relating to consumers, users of financial services and matters concerningthe environment, and grants federal judges exclusive jurisdiction to hear such cases. It is also important to note that Mexico’sCongress will have one year to issue secondary legislation on how to regulate class action lawsuits. Rules on class actions are nothingnew, since countries like the United States, Spain, Colombia, Brazil, Argentina and Chile, among others, already have rules on thistype of collective actions at a constitutional and secondary level of legislation. With the constitutional amendment to Article 17, thescope of a ruling on class actions lawsuits would be valid for a group of people who are in an identical situation to that of any plaintiffwho has filed a lawsuit against an institution or entity. Additionally, this amendment will compensate victims that sustain damagesresulting from monopolies, unfair claims, abuse and fraud and other causes of action that give rise to a class action lawsuit. It isestimated that the success of this legal concept will depend largely on secondary legislation approved by Mexico’s Congress. Up untilthis constitutional reform, the only class action available at the federal level could be filed only by the Federal Office of ConsumerProtection (“Procuraduría Federal de Protección al Consumidor” or “PROFECO”) against companies that defrauded customers, but itseffectiveness and scope was limited and was subject to the willingness of the authority to prosecute any given case. Last May,Mexico’s Supreme Court ruled for the first time on class action lawsuits brought by PROFECO, , and held that the benefits of ajudgment from such lawsuits must accrue to all affected consumers, not just those who joined in the lawsuit.
