A question of fairness: preliminary injunctions in Mexico

The system governing preliminary injunctions for pharmaceutical patent infringement should be revised to stave off potential frivolous cases, say Hedwig Lindner and Manuel Morante.

In Mexico, patent and other intellectual property infringement actions are litigated, in the first instance, before the Mexican Institute of Industrial Property (IMPI). Since 1994, IMPI has been authorised to grant various forms of provisional relief, including preliminary injunctions against the manufacture, sale and distribution of allegedly infringing goods.

Under Article 199 bis.1.I of the Industrial Property Law, a plaintiff seeking provisional relief must “prove his ownership of the rights”, as well as “the existence of an infringement of his rights”; “the imminence of the infringement of his rights”; “the existence of the possibility of irreparable damage being sustained”; or “a justified fear that evidence might be destroyed, concealed, lost or altered”.

In other words, the plaintiff is typically required to show that it is likely to prevail on the merits before provisional relief can be granted. Alternately, the plaintiff can demonstrate the possibility of irreparable harm, or show that evidence is likely to be lost or destroyed—but this is usually not the case in patent infringement cases.