JUrISdIctIOn repOrt: mexIcO
pAtentS And A H1n1
Jose Antonio romero
Becerril, Coca & Becerril, S.C.
This year, world history has been characterised by two major events: the
“ SInce tHe GLObAL FInAncIAL crISIS At
global financial crisis and the pandemic of human influenza A H1N1.
tHe end OF 2008, tHe cOUntrY HAS been
These two events have encouraged governments to take drastic measures in
ImmerSed In A deep ecOnOmIc crISIS,
order to avoid as far as possible economic disaster in their countries and to
prepare for the influenza pandemic reaching them.
WHIcH WOrSened AS A reSULt OF tHe
HeALtH emerGencY tHAt OccUrred At
Mexico was no exception. Since the global financial crisis at the end of 2008,
the country has been immersed in a deep economic crisis, which worsened
tHe end OF AprIL 2009 (tHe epIdemIc OF
as a result of the health emergency that occurred at the end of April 2009 HUmAn InFLUenzA A H1n1).”
(the epidemic of human influenza A H1N1). Over several days, and in some
cases several weeks, the operations and incomes of companies, government
offices, the educational sector and the tourist industry were drastically
affected, as restaurants, office buildings, schools, cinemas, theatres, arenas,
stadiums, etc. closed in order to prevent the epidemic from spreading.
The measures taken aggravated the economic crisis, considering that
public utility licences were not necessary to deal with the disease. In view of
private companies earned less income (they practically had no sales during
the above, in the middle of May, the Mexican government issued a second
the emergency) and suffered a loss of employment (mainly in the tourist declaration cancelling the possibility of obtaining compulsory licences.
industry). Meanwhile, the government had to divert resources in order to
take care of the population and acquire medicaments for treating human
At the same time, the Senate issued a resolution in which it did not accept
influenza A H1N1.
a bill of March 2008 proposed by the Institutional Revolutionary Party.
The main aim of this proposal was to establish an opposition procedure in
This health emergency provided an opportunity for the Mexican the IPL to grant patents and to issue sanctions to ‘abusive’ practices when
government to use the compulsory licensing provisions of the Industrial enforcing invalid patents.
Property Law (IPL) for the first time. The provisions of the IPL establish
that a patent compulsory licence may be granted in Mexico when the
The preliminary recitals of the refused proposal incorporate the arguments
that domestic generic manufacturers have previously used, namely: a) that
utilisation of the patented product or process cannot be proved (lack of
patent holders extend the life term of the patents without undermining
exploitation) or when the conditions for its granting are related to the
their IP rights; and b) that the extension in the life term of the patents stops
interests of the state (national emergencies or security). These are also
the entry of generic medicaments into the pharmaceutical market.
called ‘public utility licences’.
The Senate argued that, in fact, a possibility of delaying the prosecution
At the beginning of 2004, the IPL was revised in order to include a mechanism
of patent applications was real, considering that, as proposed, it would be
for the partial implementation of the Doha Declaration principles on public
necessary to interrupt this procedure in order to solve the opposition in a
utility licensing. The revised law allows compulsory licences for medicines
first term.
to be granted in times of national emergencies or in the interests of national
security, provided that the Mexican government declares a disease as being
In view of the above, the Senate proposed an alternative opposition
of ‘priority attention’ and that the patent jeopardises the access to drugs
procedure (at present under revision by the Congress), which in fact does
necessary to treat the disease.
not interrupt the prosecution of the patent application, but obligates the
Mexican Patent Office to issue a resolution at the same time that the patent
As a result of the above, and after the drastic measures taken by the Mexican
is granted or denied.
government to control the influenza epidemic, many generics companies
put pressure to get human influenza A H1N1 declared a ‘priority attention
disease’. At the beginning of May 2009, the Mexican government did this.
However, patent owners followed with an aggressive strategy to demonstrate Jose Antonio Romero is director of licensing and an associate at Becerril,
that access to the necessary drugs was not compromised and that, therefore, Coca & Becerril, S.C. He can be contacted at: aromero@bcb.com.mx
66 World Intellectual property review September/October 2009 www.worldipreview.com
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