RemediesRemedies for violations of competition law involving IP
What sanctions or remedies can the competition authorities or courts impose for violations of competition law involving IP?
The FLEC makes no distinction between sanctions that relate to intellectual property rights and those that do not. Some of the applicable sanctions are:
- a fine up to the equivalent of 3,000 times the general daily minimum wage valid for the Federal District, which amount may be applied for each day that passes without the fulfilment of what has been ordered;
- the assistance of the security forces or other authorities; and
- arrest for up to 36 hours.
Likewise, article 127 of the FLEC states fines and penalties.
There is the matter of compulsory licences in Mexican law, which can be requested by any person three years after the patent was granted or registered, or four years after the application (whichever occurs later), as long as the rights holder has not exploited it.
There are also public utility licences, which are granted in cases of serious diseases that could cause an emergency or undermine national security, impede, hinder or increase the production, presentation or distribution of basic goods or medicines for the population. The authorities that intervene in the granting of such licences are the IMPI, the Health Ministry and the general health council.
The Health Ministry shall determine the conditions of production and quality, duration and field of application of the said licence, as well as the qualification of the technical capacity of the applicant.
The IMPI will establish, hearing from both parties, a reasonable amount of the royalties that correspond to the holder of the patent.Competition law remedies specific to IP
Do special remedies exist under your competition laws that are specific to IP matters?
The FLEC does not mention specific sanctions related to IP.Scrutiny of settlement agreements
How would a settlement agreement terminating an IP infringement dispute be scrutinised from a competition perspective? What are the key factors informing such an analysis?
In this case, regardless of the nature of the negotiation with respect to the termination of an IP-related contract and its consequent impact on a potential competitive advantage that results in unlawful conduct, as already mentioned, the fact that the act involves intellectual property rights makes no difference for the FLEC, and thus, in its investigation, this fact would not determine a different way of proceeding with respect to unlawful conduct.
In Mexico, the rights conferred by a patent have a term of 20 years after the submission of the application with respect to its exclusive exploitation. Therefore, as long as the term has not come its end, if the patent has been granted, the patent holder will have a temporary monopoly on its exploitation, and thus the terms and conditions on which the patent holder decides to grant a license cannot be predetermined, as long as they are not illegal or go against current legislation.
Nevertheless, the FLEC states that any conduct performed by a group of producers of a related product that enables such a group to control the production, sale and price of the same so as to obtain control of such product market will constitute punishable conduct.