Since the Mexican Linkage system was created in 2003 as a consequence of some amendments to the regulations of the General Law of Health and of the Industrial Property Law, the Mexican Institute of Industrial Property (MIIP) had been including in its Special Gazette (created to compile the patents subject to be included within such system) only those patents that protect an active substance per-se but not any other kind of pharmaceutical patents, as for example, those patents granted to protect pharmaceutical compositions or formulations.
The criterion, on which the authorities of such Institute based this selective inclusion, had been grounded on a misinterpretation of such amendments to the Linkage system provisions. Under their point of view, these provisions were not clear enough in their wording. Therefrom, according with the MIIP, the linkage system was created to only include patents granted for active substances per se, so they prevented the inclusion of any other type of pharmaceutical patents.
As a consequence in the application of such questionable criterion, the inclusion in the special gazette of any other type of pharmaceutical patents that were not granted to protect an active substance per-se, was rejected by the MIIP. To achieve the inclusion of these rejected patents in the special gazette, the patent holder had to appeal the rejection through litigation in order to obtain a Court decision that ordered the MIIP to include them.
The rejected patents were included only after the conclusion of the litigation procedure, which resolution ordered the MIIP to include them into the mentioned publication. This represented a considerable delay in the application of the linkage system, as well as a significant increase in the necessary budget of the patent holders. .
In view that the interpretation of the MIIP to the linkage provisions was highly questioned and that it was revoked through several Court decisions, which confirmed that other type of pharmaceutical patents could also be included into the linkage system, the Mexican Supreme Court of Justice (MSCJ) began a discussion in order to determine if the interpretation of the MIIP to such provisions was correct, and in case of concluding otherwise, to determine the proper interpretation of the applicable regulations for the linkage system.
On February 2010, after a thorough analysis, the MSCJ concluded that the proper interpretation of the Mexican Linkage system provisions...