To understand patents we must refer to the LFPPI, which contemplates three figures for the protection of inventive rights: (i) inventions, (ii) utility models, and (iii) industrial designs. In each case, the State grants the exclusive right of exploitation for a limited period within Mexican territory. That right is granted through one or more patents (for inventions) and through registrations (for utility models and industrial designs).
Article 46 of the LFPPI defines an invention as “any human creation that allows matter or energy existing in nature to be transformed for human use and to satisfy concrete needs”. Inventions are patentable if they are (a) new, (b) the result of inventive activity, and (c) susceptible of industrial application.
The base elements to apply for a patent are:
- Novelty: anything not found in the state of the art —the body of technical knowledge made public through oral or written description, through exploitation, or through any other means of disclosure, whether in Mexico or abroad—.
- Inventive activity: a creative process whose results are not obvious to a skilled person in the field based on the state of the art.
- Industrial application: the possibility that the invention has practical utility or can be produced or used in any branch of economic activity.
Every patent consists of at least: (a) background of the invention; (b) description of the invention; (c) claims; and (d) summary. The right conferred by the patent is determined by the granted claims; the description and drawings serve to interpret them. Claims are the essential feature of the product or process whose protection is precisely and specifically claimed.
The exclusive right to exploit a patent lasts 20 non-extendable years from the filing date of the application, subject to payment of applicable fees. It grants the holder:
- In a product patent, the right to prevent third parties from manufacturing, using, selling, offering for sale, or importing the patented product without the holder’s consent.
- In a process patent, the right to prevent third parties from using the process, and from using, selling, offering for sale, or importing the product directly obtained from it.
These rights are enforceable only in Mexico. For registration or enforcement in other countries, international treaties and the applicable foreign legal framework must be consulted.
International protection: the PCT
The Patent Cooperation Treaty (PCT), ratified by more than 152 contracting States, allows protection to be sought through a single international patent application valid in all member States, without the need to file multiple national or regional applications separately. Granting remains within the competence of national or regional offices during the so-called national phase.
The PCT procedure consists of two phases: (a) International, with an 18-month term from the filing of the international application —generally 30 months from the filing date of the first priority application—; and (b) National, in which offices examine the application under their own legislation, regulations, and IP practice.
Today, companies and individuals can aspire to both national and international protection of inventions that grant them exclusive exploitation rights, with the consequent competitive and commercial advantage against third parties.