Innovation bloom in Mexico: Courts Challenge Patent Exclusion in Plant Breeding

In a significant turn of events, the Federal Court of Administrative Justice (TFJA) has overturned the previous interpretation of the Mexican Patent Office (IMPI), in three successive rulings, and established new guidelines for the patentability of modern plant breeding techniques. 

Until a few years ago, the IMPI applied a restrictive interpretation of the now-derogated Industrial Property Law, essentially excluding biological methods of plant production from patentability. However, in 2017, the office began to align itself with the European Patent Office's (EPO) definition of "essentially biological processes". According to the EPO's criteria, processes for patentability must involve a technical step that introduces or modifies a trait in the genome, regardless of sexual crossing and selection.

To give an example, let's say we want to create a new flower with special colours. If we simply cross different flowers and pick the ones we like, that basic process cannot be patented, even if you use tools or human help. But if we add a technical step, such as using genetic engineering techniques to change the colour of the flower without relying solely on the crossing, that might be something we could patent. Another patentable case is if we use genetic methods to select flowers without crossing them.

All in all, the recent rulings establish a legal precedent in Mexico for the definition of "essentially biological processes" under the Federal Law for the Protection of Industrial Property of 2020. Although this law does not provide clear criteria, the TFJA decisions offer a positive outlook for those seeking protection for plant-related inventions using biotechnological techniques.