Mexican unlawful precedent for the publication of second medical use patents in the Linkage Gazette.

January 15, 2025

On January 10, 2025, a divided precedent two to one from the Twentieth Circuit Court in Administrative Matters, not handled by Olivares, but published in the Federal Judicial Gazette, determined that second medical use patents should not be published in the Linkage Gazette.

This criterion interprets a jurisprudence which established that a patent that refers to an allopathic medicine and it is not a process patent should be included in the Linkage Gazette, same that was created by a case handled by Olivares. However, the wrongful interpretation of such jurisprudence led them to conclude that active ingredients or pharmaceutical compositions may be published in the Gazette, but not those for uses or methods.

Additionally, the Circuit Court considered that the publication of use patents in the Linkage Gazette could lead to the improper perpetuation of patent rights to the detriment of the population, since allowing the inclusion of such patents would supposedly hinder other pharmaceutical companies from marketing products with the same active ingredient, even when the active ingredient patent has expired. In other words, it would prevent access to medicines, allegedly in violation of the provisions set forth in Article 4 of the Mexican Constitution.

We consider that the criterion adopted by the Circuit Court is incorrect, mainly because neither the Law nor the jurisprudence cited by that Court explicitly orders the exclusion of use patents, while only process patents are expressly excluded from publication by our IP Law. In other words, the Court made an incorrect and limited interpretation of the jurisprudence without observing the legal principle Ubi lex non distinguit, nec nos distinguere debemus, as a result of the lack of explicit mention of use patents in our IP Law.

We must mention that this is an isolated precedent, and therefore, it does not constitute jurisprudence, which means it is not binding.

At OLIVARES, we will keep our clients closely informed on this matter, monitoring how the precedent impacts the current Linkage System.