In 2008, the Mexican Supreme Court of Justice issued a precedent whereby the admittance of an Amparo appeal against administrative decisions was allowed. This exception to the principles for the admittance of the Amparo appeal aroused from the acknowledgment said Highest Court made that the Federal Law of Administrative Contentious Procedure (FLACP), demanded more requisites for granting the "suspension of the claimed act" than those established by the Law that governs the Amparo Appeal.
In view of the above, for a little more than two years, it was still possible for the plaintiff to challenge the decisions of the Mexican Institute of Industrial Property (IMPI) through either a Nullity Claim before the Federal Court for Tax and Administrative Affairs (FCTAA) or through an Amparo Appeal before the Federal District Court (FDC) depending on its own interests.
Nevertheless, a Decree amending the FLACP, was recently published in the Mexican Official Gazette. Among other articles, the chapter related to precautionary measures was amended. This chapter includes the legal concept of the "suspension of the claimed act", which pretends that the effects of the claimed resolution be ceased until the trial is solved.
In said amendment, the requirements that the plaintiff must comply with, in order to request and obtain a decision that grants the "suspension of the claimed act" within a Nullity Claim, were considerably reduced. Consequently, the right conferred to the parties of choosing the legal remedy that better suits their interests - the Nullity Claim and the Amparo Appeal - when appealing an administrative decision, such as those issued by the IMPI, is no longer available.
As a result of the amendment of the FLACP, its requisites are now the same than those demanded by the Law that governs the Amparo Appeal. Therefrom, the plaintiff no longer has the possibility of choosing the legal remedy in accordance with its own interests so as to appeal an IMPI's decision.
From now on, the plaintiff's only option will be to appeal the administrative decisions issued by the IMPI through a Nullity Claim. (including the MIIP's in-house remedy known as review recourse) Thus, such legal remedy will be studied and resolved by the FCTAA through the Specialized Court for IP matters.
This means that the Specialized Court for IP matters of the FCTAA will be the only Court in charge of handling the first instance of appeal, and consequently, of reviewing the legality of the decisions issued by the IMPI in order to confirm them or to revoke them. Thus, it will not be possible to have a different criterion from another Court in this instance of appeal. This involves the risk that the criterion of the Specialized Court for IP becomes reiterative and conclusive in different issues. It will be until the second and last instance of appeal before the Federal Circuit Court, where the plaintiff will have the opportunity to obtain a different criterion, but will face the disadvantage that the decisions of such Court cannot be appealed.
Time also plays an important role. Considering that the FCTAA's timeframe of resolution in respect to the FDC is different due to the stages and duration of the proceedings, the likelihood of obtaining a final decision might be extended a few months further.
The above being said, it remains to be known if the FLACP amendment will be favorable to the IP litigation system; particularly, if it is considered that said amendment aims to oblige the plaintiff to appeal the IMPI's decisions through one legal remedy. This means that every decision issued by such authority will be reviewed by a unique Administrative Court within the first instance of appeal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.