It is well known that a monopoly is a disloyal commercial practice that is forbidden in many parts of the world. Article 28 of the Mexican Constitution states that: "Monopolies, monopolic practices and tax exemption are forbidden in Mexico, in the terms and conditions that Law establishes…"
But, what is a monopoly? According to a simple definition, a monopoly is a special privilege granted by the State to a person or a corporation which gives the exclusive right to supply or trade in particular goods or a particular service.
The same article 28 of the Mexican Constitution lists areas that are managed by the State which do not constitute monopolies; such as oil, nuclear energy, electricity, satellital communications, the central bank and on. "…Privileges granted to artists and authors for protection of their works and to inventors or improvement perfectioners for exclusive use of their inventions do not constitute monopolies either."
Then, is a patent an allowed monopoly? If we consider the elements that constitute a patent we might give an affirmative answer to that question. A patent is considered the temporary exclusive right granted to a person or corporation to exploit in an industrial level an invention that meets the legal requirements. There are similarities between these two concepts, such as that they are privileges granted by the State and that they confer the right to exploit something in an exclusive way.
However, we should distinguish important differences that exist between these two concepts. In a monopoly something is taken away from the public domain, but an invention is given to the public domain, although only during a determined period of time (20 years in Mexico) and the inventor has the exclusive right to the use and exploitation of his/her creation. A monopoly is something that was in the public domain and that the government takes from the public and gives to a person or company, while an invention is something new, that did not exist before and was not in the public domain, something that contributes with knowledge to the public domain when it is protected by a Patent Letters, and that enters into the public domain when the patent expires.
Today a patent is considered to be a property, such as a house or a car, and not a special privilege, a monopoly granted by the Government. A patent does not grant the positive right to make, use and sell the patented invention, but only the negative right to prevent others from making, using and selling such invention.
Therefore, we can conclude that there exist enough differences to consider that a patent is not a monopoly, but just a different concept.
The content of this article is intended only to provide general guidelines related to this particular matter. For your specific circumstances, full specialist advise is recommended
