On October 26, 1986 the Mexican Government complying with the NAFTA commitments enacted the Federal Law of Plant Varieties as a result of a previous approval of adhesion to the International Convention for the Protection of New Varieties of Plants (UPOV) of December 2, 1961 as revised at Geneva on November 10, 1972 and on October 23, 1978.

Now that the long awaited Regulations are in operation as of September 25, 1998 it is possible to comment on same which among the multiple usual regulations has some particular provisions which are interesting to be mentioned, for example:

Article 7, provides that foreign breeders rights are protectable in México only when the corresponding reciprocity is granted to Mexican breeders by the country of which the foreign breeder is citizen;

Article 16 related to the priority rights claimed provides that, in case the corresponding foreign application is rejected or withdrawn, such situation will provoke that the petition of priority filed in México will be considered as non-existent.

Article 42, is another interesting provision related to emergency licences indicating that after an approval from the Industry and Commerce Secretariat is issued, in the sense that a lack of sufficient production of vegetable goods is determined in an specific area of the country or in the whole country which may be solved by exploitation of a registered plant variety or varieties, an opportunity will be offered to the obtentor or his assignee in order to cover the emergency.

However, if the owner of the registered variety is unable or not interested in covering such emergency, the Ministry of Agriculture will conduct a public bidding procedure to locate third parties interested in covering the same. What is peculiar to this provision is that the emergency declaration must be approved by the Ministry of Commerce and Industry, while the Ministry of Agriculture will take care of the administrative procedure for granting such emergency licence. This seems to be a time consuming procedure not too effective in an emergency situation.

The above mentioned regulations have been received with relaxation and satisfaction by the intellectual property community, because same will be helpful for clarifying the spirit and legal boundaries of this recent Mexican Law.

By Antonio Lorca

This article is intended to provide a general guide to the subject matter and should NOT be treated as legal advice. Specific legal advice should be sought by you about your particular case and special circumstances.