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Applying for a patent
What are the criteria for patentability in your jurisdiction?
The standard international requirements for patentability apply in Mexico – in particular:
- absolute novelty;
- inventive step (non-obviousness); and
- industrial applicability.
Mexico’s definition of ‘invention’ must be considered, as only inventions under the definition – under which an invention must allow for a transformation of some kind – are patentable. Further, utility models are available for apparatus, objects and tools. In order for a utility model to be patented, only novelty and industrial applicability are required.
What are the limits on patentability?
Absolute novelty applies in Mexico. Public use is considered prior art when evaluating novelty and inventive step.
Inventive step is determined using the ‘problem-solution’ approach. Mexican law states that in order for an invention to lack inventive step, it must be considered obvious and based on the prior art. If the invention is not considered part of the prior art, it involves an inventive step.
Under Mexican law, an invention is considered to have industrial applicability if it can be used for commercial or industrial activities, as supported in its detailed description.
In general, unpatentable subject matter in Mexico is consistent with the Agreement on Trade-Related Aspects of Intellectual Property Rights and includes:
- methods of treatment or diagnosis;
- computer programs;
- plant varieties (International Union for the Protection of New Varieties of Plants protection is available), animals and parts thereof;
- essentially biological breeding methods;
- discoveries; and
- mathematical methods or mental acts.
Secondary uses (medical or otherwise) or variations of known inventions are patentable only if the results are unexpected or non-obvious. Both Swiss-style and European Patent Convention 2000 claim formats are allowed in Mexico for pharmaceutical inventions relating to secondary medical uses. A patent may be denied if its content is contrary to public order, morals or law.
No precedents define what is considered an ‘abstract idea’ or set out the criteria for something to be considered ‘existing in nature’. However, the definition of ‘invention’ implies that an invention must allow for a transformation of some kind. This requirement is key when drafting applications and defending an invention’s patentability.
Are there restrictions on any other kinds of invention?
Plant varieties are not patentable. However, transgenic plants and certain inventions relating to plants are patentable if the methods used are not essentially biological. The Patent Office recently restricted the criteria for an invention to be considered biological to the selection of phenotypic features of a plant as a traditional breeding process.
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