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Patentability

What are the criteria for patentability in your jurisdiction?

The criteria for patentability are:

  • patentable subject matter (ie, subject matter that is eligible for patent protection);
  • novelty (ie, anything not found in the prior art);
  • inventive step (ie, results of a creative process which are not obvious from the prior art to a person skilled in the art); and
  • industrial application (ie, the possibility of an invention being produced or used in any branch of economic activity).

What are the limits on patentability?

According to Article 16 of the Industrial Property Law, the following subject matter is not patentable:

  • essentially biological processes for obtaining, reproducing and propagating plants and animals;
  • biological and genetic material as found in nature;
  • animal breeds;
  • the human body and the living matter constituting it; and
  • plant varieties.

Further, Article 19 of the Industrial Property Law states that the following subject matter is not considered an invention:

  • theoretical or scientific principles;
  • discoveries that consist of making known or revealing something that already existed in nature, even though it was previously unknown;
  • diagrams, plans, rules and methods for carrying out mental processes, playing games or doing business, and mathematical methods;
  • computer programs;
  • methods of presenting information;
  • aesthetic creations and artistic or literary works;
  • methods of surgical, therapeutic or diagnostic treatment applicable to the human body and animals; and
  • juxtapositions of known inventions or mixtures of known products, or alteration of the use, form, dimensions or materials thereof, except where in reality they are so combined or merged that they cannot function separately or where their particular qualities or functions have been so modified as to produce an industrial result or use that is not obvious to a person skilled in the art.

To what extent can inventions covering software be patented?

Software as such cannot be patented in Mexico, since it falls within the prohibitions of Article 19 of the Industrial Property Law, which provides that computer programs are not considered inventions. Nevertheless, computer-readable claims are eligible for patent protection as long as the methodology and functions involved meet the patentability requirements.

To what extent can inventions covering business methods be patented?

Business methods as such cannot be patented in Mexico, since they fall within the prohibitions of Article 19 of the Industrial Property Law, which provides that business methods are not considered inventions. Nevertheless, computer-implemented inventions are eligible for patent protection as long as they meet the patentability requirements.

The Mexican Patent Office (IMPI) criteria for assessing the patentability of computer-implemented inventions tend to be similar to those of the European Patent Office. For example, it is required that a technical problem be solved in a novel and non-obvious manner using technical means.

To what extent can inventions relating to stem cells be patented?

Inventions relating to stems cells are patentable as long as they do not involve the use or destruction of a human embryo in order to practise the invention, since the use thereof for obtaining human embryonic stem cells is prohibited on grounds of morality.

Inventions involving stem cells derivable from parthenotes or from established cell lines are patent eligible.

Are there restrictions on any other kinds of invention?

Article 4 of the Industrial Property Law excludes from patentability subject matter whose contents or forms are contrary to public policy, morality or proper practice, as follows:

No patent, registration or authorization shall be granted, nor shall any publicity be given in the Gazette in respect of any of the legal devices or institutions regulated by this Law, where their contents or form are contrary to public policy, morality or proper practice, or if they violate any legal provision.”

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