Although Mexico is a top-three US trading partner, few US companies seek Mexican patents. The pending renegotiation of NAFTA provides an opportunity focus on intellectual property rights. It will be interesting to see the extent that patents become an element in the negotiations. USTR is particularly calling on Mexico and Canada to pay more for prescription drugs.
I have no practical experience with enforcing MX patents, but I have been told in the past by clients that the MX courts slow walk everything and lowball the damages, such that the game is rarely worth the candle when it comes to enforcement in Mexico. IP treaties rarely (never?) address this end of IP. The IP treaties with which I am familiar all concern things that happen in the national patent office (these are the sorts of subject matter to which protection can be given, this is what it means to be an advance over the art, this is how much time the applicant has to file an application or respond to an office action, etc).
I have never seen an IP treaty that deals with how things play out in court. I suppose that there is no reason in principle why one could not negotiate such details in a treaty (no more than X number of days can pass between filing of complaint and final decision, damages must be calculated according to this treaty-specified formula, etc).
I would imagine, however, that such a treaty would be hard to sell to the relevant legislatures. For obvious reasons, the elected branches of most governments do not like to appear to be interfering in the court systems. Meanwhile, courts might well resent the imposition of such treaty standards, and if courts are not willing to play along and implement the negotiated treaty standards in a uniform manner across countries, then a treaty that settles such standards is not actually worth much.
I “get” that the title to this article is meant to be “pithy” and “eye-catching,” but for purists, a “NAFTA Patent” has to be more than just a little irritating.
There is no North American Trans-Sovereign entity or mechanism for anything but a Sovereign-centric patent in play (comity is just not the same as an actual trans-sovereign legal property).
What exactly would be interesting?
Is there a driver for protection within the Mexican Sovereign? Is Mexico importing goods that need to be protected with patents?
Or does negotiations call for stricter observance of US patents pertaining to imports into the US Sovereign?
If the latter, we probably should focus first on having the US Sovereign show more respect to granted US property rights before clamoring for our neighbors to do the same.
Disappointing that the USTR wants countries to pay more for prescription drugs. If we took a vote of all citizens, do you think they would vote to pay more or less for prescription drugs??
It’s a good thing that economics of pricing is not a democratic thing.
Pretty sure that the masses would vote for everything to be “Free.”
(your brother Adam had a lot to say on this matter)
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