Mexico Faces Renewed Pressure to Adhere to 1991 Act of the UPOV Convention

November 20, 2017

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Mexico Faces Renewed Pressure to Adhere to 1991 Act of the UPOV Convention

In 1997, as a result of the commitments arising from the North American Free Trade Agreement (NAFTA), and after the publication of the Federal Law on Vegetal Varieties drafted in accordance with NAFTA, Mexico officially adhered to the International Union for the Protection of New Varieties of Plants (UPOV) Act of 1978.

The criteria for the protection of plant varieties are the same in all UPOV member states: the plant variety must be new, distinctive, uniform and stable. However enforcement of the corresponding rights in Mexico substantially differs from other jurisdictions. As a signatory of the UPOV Act of 1978, rather than the updated 1991 Act, the term of protection for plant varieties is shorter than in most countries, with 18 years for perennial species and 15 years for all others.

In 2012, there was a first attempt to approve a new Federal Law on Vegetal Varieties that brought México in line with the UPOV Act of 1991, but the fragile state of the Mexican agricultural system, among other issues, prevented its approval.

However, the negotiations of the Trans-Pacific Partnership (TPP) in previous years, and now the renegotiation of the NAFTA Agreement, have resulted in new initiatives to modify the law and observe the UPOV Act of 1991, which would recognize additional rights for plant breeders and improve the economic development of the agricultural industry.

These initiatives have stressed the need to focus on three particular areas:

a) The extension of the right of exclusivity from 15-18 years to 20-25 years, depending on the species, in order to achieve an equitable remuneration for the breeder and also to distribute the cost of the investment;

b) the extension of the scope of protection-that is, not only the propagating material but the product of the harvest; and

c) the incorporation of the concept of essentially derived variety with the intention of encouraging constant innovation.

The main objective of the proposed initiatives is to increase competitiveness by improving the research programs for Mexican native species, to strengthen enforceability measures in order to promote an environment of innovation and investment, and to facilitate the access and transfer of technologies.

The most recent initiative on the subject is currently under internal review by the Ministry of Agriculture, Livestock, Rural Development, Fisheries and Food (SAGARPA), but there is a chance that it will be taken up by the Congress soon.

This newsletter is intended only as a general discussion of the addressed issues, and should not be regarded as legal advice.

For further information on the content of this newsletter, please contact

• Sergio L. Olivares, Jr. sergio.olivares@olivares.mx
• Alejandro Lunaalejandro.luna@olivares.mx
• Abraham Díaz abraham.diaz@olivares.mx
• Erwin Cruzerwin.cruz@olivares.mx
• Karla Olvera  karla.olvera@olivares.mx

or call at +52(55) 5322 3000