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.
As is well known, this Monday, June 28, 2021, the Supreme Court of Justice in Mexico approved the recreational use of marijuana, that is to say, in view of the refusal of the Congress of the Union and the Senate to legislate on the matter, something it had already pronounced on a long time ago, decided once again to take one more step towards the legalization of marijuana for recreational use, stating that the indirect Amparo lawsuit against the norms of the General Health Law that do not allow the recreational consumption of marijuana may be filed at any time, since Articles 235, last paragraph, 237, 245, section I, 247, last paragraph and 248 of the General Health Law are considered stigmatizing, which form a system of administrative prohibitions, an objectively implicit perceptible message is noticed, namely, that the authorization for the performance of acts related to narcotic drugs or psychotropic substances is subject to the fact that they have “medical and/or scientific” purposes, without including the possibility that marijuana may be used for “recreational or recreational” purposes, therefore, the challenged rules issue a negative or stigmatizing value judgment with respect to recreational consumers of marijuana, a prohibition that even the Supreme Court of Justice of the Nation has held violates human dignity, in its aspect of free development of the personality. Consequently, in order to challenge these norms it is not necessary to prove a concrete act of application, since their permanence in the legal sphere of the individual causes the affectation to be prolonged in time.
In this sense, the Supreme Court in the use of its powers approved the recreational use of marijuana, however, it is important to clarify that such activity will remain illegal under the Penal Code if you do not obtain the necessary permit to do so; the permit does not allow you to sell, buy, give away cannabis or travel outside the country with this substance. That is to say, once you obtain the permit, you will be able to consume and transport it according to what is indicated in the permit obtained before COFEPRIS, who will be the authority in charge of issuing permits to persons over 18 years of age.
In order to obtain the permit, you must do the following:
1) You must be over 18 years of age.
2) By means of a letter addressed to Dr. Alejandro Svarch Perez, Head of the Federal Commission for the Protection against Sanitary Risks (Comisión Federal para la Protección contra Riesgos Sanitarios, Secretaría de Salud). Requesting the Federal Commission for the Protection Against Health Risks to grant you an authorization for the personal consumption of cannabis.
3) Original and copy (for your acknowledgement) of said letter, your official identification.
4) If you are from Mexico City, you can go to the COFEPRIs Delegation located in the Nápoles neighborhood, at 14 Oklahoma Street, in the Benito Juárez district.
5) If you are from another part of the Mexican Republic, please check the following link for the locations of the delegations in your State: https://www.mucd.org.mx/wp-content/uploads/2019/07/Directorio_del_Sistema_Federal_Sanitario_2019.pdf
6) The application can be submitted at the Centro Integral de Servicios de la Cofepris from 8:00 am to 2:00 pm.
7) There is a special module and to be attended you must request an appointment. (No appointment is required).
8) In accordance with Article 8 of the Political Constitution of the United Mexican States, your documents cannot be rejected, since, in case you are missing something, it is Cofepris’ obligation to request it in writing at a later date.
9) In order to enter your data, you will be asked again for identification, your CURP, telephone number, e-mail and address.
10) Once your data has been entered, you will be given an acknowledgement.
11) From the next day after your request you will have to wait 40 business days to receive a response.
12) The next step in the process is to file an “amparo” request.
For this step, it is advisable to seek the advice of a lawyer, since you must take into account that until you obtain a favorable ruling, all these activities continue to be prohibited: planting, cultivation, harvesting, processing, preparation, conditioning, acquisition, possession, trade, transportation in any form, supply and use.
Come to us.
Gloria Ponce de León & Hernández
As is well known, on April 23 of this year, important reforms in labor matters were published in the Official Gazette of the Federation, incorporating the prohibition of subcontracting personnel, establishing the fact of being able to exceptionally subcontract specialized services or the execution of specialized works that are not part of the corporate purpose or the main economic activity of the beneficiary of such services.
In this sense, those complementary or shared services or works rendered between companies of the same corporate group may be considered as specialized, provided that they do not form part of the corporate purpose or of the main economic activity of the company receiving them.
For this reason, within the Reform to Article 15 of the Federal Labor Law, it was established that individuals or legal entities that provide subcontracting services must be registered before the Ministry of Labor and Social Welfare; such registration will have a term of 3 years and must be renewed after such term has elapsed. In order to register, the following requirements must be met:
- The main one: they must be up to date with their tax and social security obligations with the Tax Administration Service, the Mexican Social Security Institute and the National Workers’ Housing Fund Institute (Instituto del Fondo Nacional para la Vivienda de los Trabajadores) as of the date on which the application for registration is made.
- The process will be carried out online.
- They must have a valid employer’s registration
- They must establish with precision the service they wish to render or the type of work they wish to execute. For each of said activities they must accredit, under oath, the specialized nature of the same and describe the elements or factors that support this exceptional nature.
- In order to prove the specialized nature, information and documentation shall be provided, according to the requirements of the platform, regarding: training, certifications, permits or licenses that regulate the activity, equipment, technology, assets, capital stock, machinery, risk level, average salary range, experience, among others.
The specialized services or works to be registered must be contemplated within its corporate purpose.
Once the required documentation has been uploaded, the Secretariat will assign them a tracking folio and will have 20 business days to issue the corresponding registration notice. Once said term has elapsed without the registration notice having been issued, the registration will be deemed to have been effected for all legal purposes. The term to resolve the request for registration, provided for in Article 15 of the Federal Labor Law, will begin to run from the date of receipt of the request.
It is important to take into consideration that the Ministry may require at any time, additional documentation from the applicant or governmental entity to corroborate and validate the information provided.
However, it is likely that the Secretariat may deny the registration when any of the following assumptions are present:
- Failure to accredit the specialized nature;
- Not being up to date with tax and social security obligations before the Tax Administration Service, the Mexican Social Security Institute and the National Workers’ Housing Fund Institute.
- Failure to comply with the requirements and requirements established in the agreement;
- Providing false information or apocryphal documents, without prejudice to the legal actions that may be applicable, or that the documentation uploaded to the platform has not been in the established format or are illegible.
- Refusing to comply with the requests for information or complementary documentation required by the Secretariat.
- It is detected that the data entered in the platform are different or inaccurate with respect to the data and information contained in the documents entered.
Likewise, such registration may be cancelled for the following reasons:
- Providing services or specialized works not registered in the Register;
- Providing services or specialized works that are part of the corporate purpose or predominant economic activity of the beneficiary;
- There are debts for firm credits derived from non-compliance with tax and social security obligations with the Tax Administration Service, the Mexican Social Security Institute and the National Workers’ Housing Fund Institute;
- Failure to comply with the requirements or requirements that served as the basis for granting the registration;
- Failure to comply with the provisions of the Federal Labor Law on subcontracting;
- Refusal to comply with any request for information or documentation required by the Ministry;
- Failure to renew within the term established in the second paragraph of Article 15 of the Federal Labor Law.
Once the Secretariat notices the possible non-compliance, it will notify the individual or legal entity so that within a term of five business days it may state what it deems appropriate, and if applicable, it will decide what is appropriate.
Finally, the renewal process must be initiated within three months prior to the date on which the registration expires.
Another aspect to be taken into consideration is the fact that all individuals or legal entities that obtain the registration will be obliged to fully identify their workers by means of the image, name, badge or identity code that links such workers with the company that provides the specialized service or performs the specialized work during the performance of their work in the facilities of the company that contracts the services.
The contracts that the contracting companies enter into with companies that provide specialized services or perform specialized works must include the registration and folio of the activity or specialized work in force of such companies.
Through the Platform it will be possible to verify at any time the registration and the validity of the same of the companies that provide specialized services or execute specialized works.
All of the above is of utmost importance to contemplate, this derived from the verification powers of the Ministry of Labor and Social Welfare and, therefore, in case of non-compliance with the above, it may even result in a fine for your company.
If you have any doubts, go to an experienced lawyer specialized in labor issues, we have a qualified team to solve your doubts.
Gloria Ponce de León & Hernández
The Labor Reform in Mexico is one of the issues that is of great importance today. Since this reform aims to put working conditions in order for all parties involved in the labor relationship, this reform has an impact on many areas of life in Mexico
Why should a collective bargaining agreement be legitimized?
- A way to terminate the collective contracts that exist in the Conciliation and Arbitration Boards, but are not reviewed because they are protection contracts, or inactive contracts that were not formally terminated.
- To avoid simulation in collective bargaining, the procedure for legitimizing existing collective contracts is established; an obligation that all unions must fulfill before May 1, 2023.
- All new collective agreements and their revisions must be approved by the workers through personal, free, direct and secret vote.
- If the workers do not legitimize their collective contract, it will be terminated but the workers will retain the rights and benefits acquired.
Legitimation of existing contracts:
- Its foundation is the Eleventh Transitory Article of the Decree of May 1 that amended the Federal Labor Law.
- It will be done only once, so all unions must legitimize their existing collective agreements before May 1, 2023.
- Its purpose is to ratify the content of the existing collective agreements, deposited before the Conciliation and Arbitration Boards at the local and federal level, through the personal, free, direct and secret vote of the workers.
- If the majority of the workers vote in favor of the collective bargaining agreement, the Ministry of Labor and Social Welfare, while the Federal Center for Labor Conciliation and Registration comes into operation, will issue the proof of legitimation.
All collective contracts that are deposited with the Conciliation and Arbitration Boards must be legitimized.
The initial collective contracts and comprehensive reviews that are carried out before the Federal Center for Labor Registry Conciliation, through a democratic consultation that complies with the requirements of the law and is ratified by the authority, will be considered legitimate.
Gloria Ponce de León & Hernández
On May 04, 2021, the reforms of articles 51, 53, 56, 57, 59 BIS and 86 of the Hydrocarbons Law was published, in which permits to transportation, storage, distribution, compression, liquefaction, decompression, regasification, commercialization, and Expenses to the Public of Hydrocarbons among others are restricted.
However, we must emphasize that those affected by this reform are the permit holders, that is the natural or legal persons owners of a permit for the authorization of the activities that can be carried out for transport, storage, distribution, compression, distribution and sale of gasoline, diesel and other fuel vehicles.
How permit holders can defend against this reform?
The defense of the case is the “Juicio de Amparo Indirecto” (judicial proceeding), for the above, the interested party must be a permit holder in accordance with the provisions of the Hydrocarbons Law, either by the publication of the reform, as well as permit holder is seen affected by said reform.
Gloria Ponce de León & Hernández