Legislative Implementation of Flexibilities - Mexico

Title:	Articles 70, 73 and 77 of the Industrial Property Law of 25/06/1991, last amended version of 06/12/2005
Field of IP:	Patents
Type of flexibility:	Compulsory licenses and government use
Summary table:

Provisions of Law

Article 70. In the case of inventions, after three years from the date of grant of the patent, or four years from the filing of the application, whichever period elapses later, any person may apply to the Institute for the grant of a compulsory license to use said invention, where it has not been used, unless there are duly justified reasons for such non-use. A compulsory license shall not be granted when the patent owner or the holder of a contractual license has been importing the patented product or a product obtained using the patented process.

Article 73. On expiration of the period of two years following the date of grant of the first compulsory license, the Institute may for administrative purposes declare the patent lapsed if the grant of the compulsory license has not remedied the non-working thereof, or if the patent owner has not proved the working thereof or the existence of reasons that are justified in the opinion of the Institute. The payment of royalties under a compulsory license shall end when the patent lapses or is invalidated, or for any other reason provided for in this Law.

Article 77. For reasons of national emergency or security, and for as long as those reasons obtain, including the outbreak of serious diseases declared as requiring priority attention by the General Health Council, the Institute shall, in a declaration published in the Official Journal, determine that use may be made of certain patents by means of the grant of licenses of public utility in cases where, if such use were not made, the production, supply or distribution to the public of staple goods and services or medicines would be prevented, hindered or made more expensive.In cases of serious disease causing an emergency situation or threatening national security, the General Health Council shall issue the declaration of priority attention either on its own initiative or in response to a written request by the national institutions specialized in disease which are accredited by the General Health Council, in which it justifies the need for priority attention. Once the Council's declaration has been published in the Official Journal, pharmaceutical firms may request that the Institute grant a license of public utility, and the Institute shall grant said license after hearing the parties, for as short a period as justified by the case in accordance with the opinion of the Council, within 90 days, starting from the date on which the request is submitted to the Institute. The Ministry of Health shall determine the conditions of production and quality, duration and scope of application of said license, as well as the classification of the applicant's technical ability. After listening to both parties, the Institute shall establish a reasonable total in royalties for the owner of the patent. The grant may cover one or all of the prerogatives referred to in subparagraphs I or II of Article 25 of this Law. With the exception of the grant of licenses of public utility as referred to in paragraphs two and three of this Article, other licenses shall be granted in accordance with the terms contained in paragraph two of Article 72. None of the licenses referred to in this Article may be exclusive or transferable.