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TPP and its impact in the Intellectual Property in Mexico

The Trans-pacific Partnership Agreement (TPP), is a free trade multilateral agreement, signed by twelve countries, among them Mexico, and has thirty chapters about diverse topics, among which there is an Intellectual Property chapter.

It is important to address this matter in local level, since as any other signature of multilateral treaties, the signature of this Agreement brings a compromise on the part of all signatory countries to adequate their legislative compendiums in accordance with minimum standards stated in the corresponding Treaty.

Turning now to specific matter, it is a fact that whether the TPP enters into force, our internal legislation regarding intellectual property would have to be reviewed; hence, the Intellectual Property Law and its regulation; the Mexican Copyright Law and its regulation and even the Federal Plant Variety Law and its regulation have to be mentioned, due to Mexico has been committed to ratify the UPOV Convention of 1991 with the signing of the TPP; as well as to consider the possibility of amending the Federal Criminal Code in its corresponding section because of the inclusion of Technological Protection Measures (MTPs) established by the TPP.

In view of the above, regarding the sector of industrial property, we consider that main amendments to respective ordinance shall cover the following figures:

1) Trademarks, in this regard, the TPP states a broad protection, including those signs which are not necessarily visual perceptible, such as sound and scent marks. Likewise, it includes certification marks, whose role consists on recognizing that certain goods and/or services have complied with identified requirements established in the suitable Mexican Regulation. Besides (exclusively for trademarks) the TPP establishes the non-obligatory recordal of licenses of use, in order to recognize their validity and as proof of use.

2) Geographical Indications, in this regard, our Mexican legislation for this subject, only recognizes the appellation of origin that we consider a more complex figure than geographical indications, due to, for this last figure, it is only required to prove for the protection of granting, the reputation attributable to its quality, of certain product and/or service, which comes from a specific region.

Furthermore, the TPP states that an opposition system must be considered during the examination procedure of geographical indication; as well as, the invalidity procedure initiated by any interested third party against those geographical indications that have been already recognized. In this respect, it will be very important that, at the moment of making the corresponding amendments, our lawmakers take into considerations that the Mexican figure established by our Law (appellation of origin), is always held by the Mexican State.

3) Patents, the TPP establishes the possibility of adjust the term of a patent in the 2 following cases: a) an unreasonable delay during the examination procedure of a patent application; or b) an unjustified delay during the authorization procedure for obtaining a marketing authorization regarding pharmaceutical products subjected to a patent.

4) Clinical data, the TPP also states the inclusion of protection of such kind of information in the respective domestic legislation, which consists on: a) 5 years for new molecules, b) 3 years for new indication/formulation or 5 years for new combinations and c) 8 years for biologic products. We consider that this inclusion would be done in our Regulation on Health Inputs.

According to our Mexican Copyright Law, whether the TPP would enter into force, we consider that no amendment would be necessary to the figures stablished in our cited law. In this regard, the TPP essentially states an enlargement of the protection term for copyrights and two of the related rights, which are performers and producer of phonograms, in the following way:

– Copyright – 100 years as of the author’s death;
– Performers and producer of phonograms – 75 years each of these, as of the first fixation in a phonogram or first transmission by radio, television or any other communication media (with regard to performers) and, as of the first fixation of sounds in a phonogram (with regard to producers of phonograms).

The above, due to, our legislation already states such terms parameters.

5) Technological Protection Measures (TPMs), this figure would have to be included in our legislative frame; however, this situation would have to be reviewed very well, in order to determine in which Mexican legislative compendium would have to be included, whether Mexican Copyright Law (MCL) or in Federal Criminal Law (FCL), or both. Currently, our legislative frame (“MCL” and “FCL”), only considers protection against devices, systems or acts, whose function is deactivate electronic devices for protection of a software or crack a satellite signal without authorization of the legitimate distributor of such signal. However, the TPP considers the protection against acts that escape technical protection measures considered effectives that authors, performers and producers of phonogram use in connection with the execution of their rights and that restrict non-authorized acts with regard to their works, performances and phonograms.

It is important to emphasize that such technological protection measures, must have the characteristic of effective, it means that they cannot be circumvented by accident.

It has been merely mentioned some of the changes which would have to be made in our domestic legal ordinance, in the event of the TPP enters into force. Note that internet service providers have not been mentioned here; however it is also important to analyze this figure, at the moment of studying the TPP, among others more figures which also need a deep analysis.

Finally, we must not lose sight that TPP is still pending to be approved by our Senate, as well as, by the equivalent authorities in the rest of signatory countries. At this point, it is important to mark that approval in the United States of America is essential for the approval in our Country and maybe also in the rest of signatory Countries. The truth is that USA election has made that entering into force of TPP becomes increasingly uncertain.

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Carmen Sánchez-Puelles