GENETIC RESOURCES IN MEXICO


In recent years there have been some initiatives to modify the Mexican Industrial Property Law for restrictive provisions covering the disclosure requirements of biologic materials, and to require prior informed consent or to create a new law on access and exploitation of genetic resources. However,


these initiatives have been rejected


because, as was expressly stated by Mexico’s lower house, the Chamber of Deputies, it was better to wait for the outcome of international developments in this area.


In summary, the current regulations in Mexico provide for a legal framework that addresses the fundamental principles of


genetic resources. However, in terms of


protecting the


ability to invest in new biotechnology, the framework is still not clear. On the one hand communities that own or legitimately use land require documentation and suffi cient evidence of organisation in order to make it feasible for collectors to negotiate and follow the CBD and its related protocols.


purposes is allowed aſt er authorisation from SEMARNAT—but only with the express and informed consent of the owner or legitimate user of the land where the biological resource is found. According to this same article, and in accordance with the CBD, such owners or legitimate users shall have the right to an “equitable” share of the potential or actual benefi ts of such exploitation in accordance with the applicable law.


It has not been possible to put into practice these provisos, however, as there is no clarity on the criteria that SEMARNAT would have to consider in order to grant the referred authorisation, or on what would be considered an “equitable” share of the potential or actual benefi ts of the exploitation of genetic resources.


Additionally, it is not clear who should be


responsible for granting the authorisation and for verifying the compliance of the law within SEMARNAT itself. To the best of our knowledge, only one authorisation has been issued since the law was enacted.


In Mexico, most of the biological materials are collected by


research centres without


SEMARNAT’s permission and without the consent of the owner or legitimate user of the land where the biological resource is found. In other words, they do not comply with the CBD. Even when the legal framework exists in practice, there is no-one who can control or manage these activities.


www.lifesciencesipreview.com


Roxana Aispuro is a chemical engineer. She focuses her practice on IP valuation, promotion and/or technology transfer, technological competitive intelligence, strategic knowledge management and technical analysis of patents.


Mariana González joined Becerril, Coca & Becerril in 2008. She focuses her practice on substantive issues of patent litigation, technological competitive intelligence, sanitary


regulation strategic knowledge management. and


On the other hand, the relationship between the rights of the land owners and the IP rights that will arise from research and development is not suffi ciently developed within Mexico, or elsewhere.


T e diffi culties of complying with international treaties and local law may be managed through good practices, such as collecting biological materials in properties where the land owner is clearly identifi ed and by creating a good and fair contractual relationship with such an owner.


“THE RELATIONSHIP BETWEEN THE RIGHTS OF THE LAND OWNERS AND THE IP RIGHTS THAT WILL ARISE FROM RESEARCH AND DEVELOPMENT IS NOT SUFFICIENTLY DEVELOPED WITHIN MEXICO, OR ELSEWHERE.”


Moreover, companies interested in collection should seek to clarify and optimise the administrative proceedings in SEMARNAT to construct a system that


allows authorisations


through clear criteria and procedures. T is will help to create specifi c rules on the process and the eff ects of authorisations, including their term and scope—features not currently laid out in the law.


Karla Roxana Aispuro Castro is an engineer at Becerril, Coca & Becerril. She can be contacted at: kaispuro@bcb.com.mx


Mariana González Vargas is an engineer at Becerril, Coca & Becerril. She can be contacted at: mgonzalezv@bcb.com.mx


Life Sciences Intellectual Property Review


Volume 2, Issue 1


39


MATEJ KASTELIC / SHUTTERSTOCK.COM


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