Imagination is perhaps the most astonishing of all human faculties. When people look around, they can immediately find the results of human ingenuity. A book, a lightbulb, a watch, a pen, a song, a computer program – and an enormous list of other objects – result from human imagination and labor.
It is important to emphasize that the faculties of the human mind have produced each of these inventions, especially in the current age of witnessing the emergence of Artificial Intelligence. Likewise, we should not forget that mental faculties will always be boundless because, since ancient times, human beings have needed to improve their living conditions.
With these ideas in mind, at IP Consultores, we consider it necessary to share with our audience various entries on our blog about the protection of Intellectual Property rights in Mexico. Therefore, on this occasion, we begin with the general aspects of patents recognized in the Federal Law for the Protection of Industrial Property.
What is a Patent?
According to Dan L. Burk, a patent “is a document that explains in detail an invention for which exclusive rights are sought” under a specific Intellectual Property system.[i] While a patent has the nature of a document, it should not be overlooked that it is also a particular type of right.
Furthermore, following Michael Kasdan, a patent grants the right to exclude others from using the claimed invention. Essentially, this means that through a patent, its holder excludes third parties from making, using, selling, offering for sale, or importing the patented invention without their consent.[ii]
Subject Matter of a Patent: the invention
As previously explained, the subject matter of a patent is inventions. While in each Intellectual Property system, various subjects can be protected by a patent, at this time, we are interested in determining what an invention is, what characteristics it must possess, and what inventions cannot be patented in our country.
In Mexico, according to the Federal Law for the Protection of Industrial Property (FLPIP from now on), an invention is “any human creation that allows the transformation of matter or energy from nature” so that people can harness it for their specific needs.
While at IP Consultores, we believe that this definition is ambiguous, it’s essential to remember that the following characteristics determine the patentability of an invention: 1) novelty, 2) inventive step, and 3) industrial applicability. To fully understand the scope of each of these conditions, it’s crucial to grasp another concept related to the patentability of an invention: the state of the art.
State of the art is the body of knowledge about a particular invention that has been made public (through oral or written description) by any means of information “before the date of filing the patent application or the recognized priority.” Additionally, to fully comprehend what the state-of-the-art entails, it’s essential to consider the elements constituting a patent application.
Elements of a Patent Application
According to Article 94 of the FLPIP, the general requirements for any patent application are 1) general data of the applicant, 2) general data of the inventor, 3) the designation or title of the invention, 4) the description of the invention, 5) the claims, 6) the abstract, and 7) the drawings.
Moreover, it’s worth noting that – according to the IMPI’s Inventions Guide – the purpose of the description is to “understand the technical problem” and “explain the advantageous effects of the invention.” [iii] Conversely, the claims are “the essential technical features of an invention that are sought to be protected by the patent application.” [iv] The summary of a patent application serves as “a useful and efficient tool in information retrieval.” [v]
Likewise, according to Article 51 of the FLPIP, “the state of the art on the date and time of filing the patent application or the recognized priority shall be considered to determine the novelty of an invention.”
General Aspects of Patents
Any individual or legal entity can be a patent holder. When an invention is made jointly by two or more individuals, they all have the right to claim ownership. The validity of a patent in Mexico is twenty years non-extendable, counted “from the date of the recognized filing of the application.”
In the case of individuals subject to an employment relationship, the inventions they create will be governed by the Federal Labor Law. Individuals working in an educational institution, a Public Research Center, or any public entity will be subject to applicable regulations when they develop an invention.
Moreover, by Article 47 of the FLPIP, the following are not considered inventions: 1) discoveries, scientific theories, or principles thereof; 2) mathematical methods; 3) aesthetic creations; 4) schemes, rules, and methods for games, economic or business activities; 5) computer programs; 6) ways of presenting information; and 7) biological and genetic material.
Additionally, the following are prohibited from being patented: 1) inventions contrary to public order or that contravene legal provisions, 2) inventions that pose a threat to health, human, animal, or plant life, 3) inventions that cause serious harm to the environment, 4) plant varieties and animal breeds, 5) methods for obtaining plants, animals, and their resulting products, 6) methods for surgical or therapeutic treatment of the human or animal body, 7) applied diagnostic methods, and 8) the human body at its various stages of development.
At IP Consultores, we know that imagination is the source of all inventive activity, so it is essential for inventors to be aware of the rules to protect their Intellectual Property rights. In subsequent entries on our blog, we will review the requirements for a patent application submitted to the Mexican Institute of Industrial Property.
*** This blog entry does not constitute legal advice. It aims only to contribute to understanding Intellectual Property procedures in Mexico. Therefore, if you require legal advice related to this matter, don’t hesitate to contact us.
[i] BURK, Dan L., “Patents and Related Rights: A Global Kaleidoscope,” in DREYFUSS, Rochelle and PILA, Justine (eds.), The Oxford Handbook of Intellectual Property Law, Oxford University Press, 2018.
[ii] KASDAN, Michael, “Intellectual Property Licensing,” in DREYFUSS, Rochelle and PILA, Justine (eds.), The Oxford Handbook of Intellectual Property Law, Oxford University Press, 2018.
[iii] IMPI, Guide on Inventions. Patents and Utility Models, Mexico.
[iv] ibíd.
[v] ibíd.
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