The authority in charge of the protection of industrial property in Mexico is the IMPI (Mexican Institute of Industrial Property), the IMPI is empowered to grant in terms of law the exclusive and temporary right of exploitation for inventions, utility models, industrial designs or integrated circuit layouts. This right in the case of inventions is granted through a patent.
The Federal Law for the Protection of Industrial Property (LFPPI) refers to the fact that any human creation that allows transform matter or energy that exists in nature, to be use by humans and satisfying their specific needs, is considered an invention; in this sense the IMPI may grant a patent to inventions that gather the following characteristics:
- Be new or thet an inventive activity has been used.
- Have an industrial application or solve an existing problem or situation
- That can be exploited commercially.
In Mexico, the process to grant a patent can take up to 5 years, the patent will be valid for twenty years, non-extendable, counted from the recognized filing date of the application.
Due to the foregoing, complementary certificates may be granted by the authority when there are unreasonable delays, directly attributable to the IMPI that translate into a period of more than five years, with the complementary certificates the holder of the exploitation rights, may request that the validity of the patent can be adjusted in order to not be affected by the non-extendable period of 20 years.
Unreasonable delays are defined as (i) The period that elapses between the date of receipt and the date of the favorable resolution of the formal examination; (ii) periods attributable to actions or omissions of the applicant, tending to delay the procedure for granting the patent and the additional terms used, (iii) periods not attributable to actions or omissions of the IMPI or that are beyond its control, such as those that elapse in the substantiation of any means of administrative or jurisdictional challenge or that derive from them, and (iv) the periods attributable to causes of force majeure or fortuitous event.
The IMPI will grant complementary certificates regarding patent procedures, observing the following:
- That the patent process exceeded five years, otherwise the issuance of a complementary certificate will be inadmissible.
- Determine the period of time that corresponds to reasonable delays and remove it from the processing period.
- In the event that the period resulting from the previous point is greater than 5 years, the IMPI will determine the period of days that corresponds to an unreasonable delay, which will result in a complementary certificate valid for 1 day for every 2 days of unreasonable delay.
- Complementary Certificates may not be valid for more than 5 years and may only be granted once.
Lic. María Galaviz.
Gloria Ponce de León & Hernández.
