As a megadiverse country, Mexico acknowledges the value of biological diversity through the signing of the Convention on Biological Diversity (CBD). The CBD commits signatory countries to the conservation, sustainable use and fair and equitable sharing of the benefits that arising out of the utilization of genetic resources. The CBD is important for industrial property as it is related to the patenting of genetic resources through the recognition of the site where these were obtained and distribution of benefits.
The CBD has protocols for to help carrying out its implementation. An important agreement within the CBD corresponds to the Nagoya Protocol. The Nagoya Protocol is a supplementary agreement wherein the signatory countries commit to amend their domestic law to facilitate access to the genetic resources and sharing the benefits derived therefrom. The domestic law must be amended so that it provides a system of surveillance that allow contribute the fulfilment of the Protocol, punish noncompliance and discourages the illegal access to genetic resources. Mexico ratified the agreement in October of the 2014; however, the domestic legislation is still insufficient to carry to out the compliance of the treaty.
The current Mexican legislation related to the protection of genetic resources includes sections scattered in different laws; some of the laws include:
- General law on ecological equilibrium and environmental protection
- General law for sustainable forest development
- General wildlife law
- General law of fisheries and aquaculture
The current legislation recognizes the value associated to the resources genetic and sets forth the provisions by which these are protected in Mexico. Additionally, the current legislation links the access of genetic resources with the indigenous communities where these are obtained, emphasizing the need to distribute the benefits derived therefrom with the indigenous communities; however, the sections included in the above laws still comprise several deficiencies.
The persistent lack of clarity in the procedure to distribute the benefits to the indigenous communities, in the verification of access to genetic resources, in the selection of competent authorities for the management of verification and the lack of linkages between authorities of different fields, denote that Mexico still has no legislation that allows accomplish the objectives of the CBD.
An example of the aforementioned is found within the law General law for sustainable forest development. Article 102 of this law provides that a patent may be considered null if it does not acknowledge the indigenous community from which the genetic resource was retrieved. The previous article does not specify the procedure whereby recognition must be carried out, the Mexican Industrial Property Law does not contemplates the process by which the recognition is held, it does not even consider that a lack of recognition is considered a cause to render a patent null. Which is the process whereby the recognition is held? Before which authority must the recognition be held? Is the lack of recognition really considered a cause of nullity for the Mexican Institute of Industrial Property?. The previous article is an example of the ambiguities present in the application of the CBD within the Mexican legislation.
For now, the current Mexican legislation regarding the genetic resources could be considered insufficient to meet the objectives set forth in the CBD. Mexico recognizes the importance of having a law that meets the objectives of the CBD; however, to achieve it, is necessary to strengthen the current legislation, so that the process is quick, clear and without place to ambiguities.
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