MEXICO Law and Practice Contributed by: Eduardo Kleinberg, Adolfo Athié, Claudio Ulloa and Juan Carlos Hernández, Basham, Ringe y Correa S.C.
are intended to prevent public disclosure of sensitive information during the course of proceedings.
ticularly where it is developed using the employer’s resources or in connection with its business activities. In practice, this allocation may also depend on the employment contract and internal policies governing confidentiality and intellectual property. Employees are subject to statutory duties of loyalty, good faith, and confidentiality under Mexican labour law, as well as contractual obligations, which together include an obligation not to disclose or misuse the employer’s know-how during and, where applicable, after employment. For contractors, consultants, and joint development partners, ownership and use of know-how are pri- marily determined by the applicable contract. In the absence of specific contractual provisions, allocation is assessed based on the scope and purpose of the relationship and general civil law principles. 6.4 Protection Through Contract and Confidentiality The protection of know-how in Mexico relies primar- ily on contractual mechanisms. The most common instruments are non-disclosure agreements (NDAs), confidentiality clauses in employment and service agreements, non-use and limited-purpose clauses, and restrictions on access to information. In prac- tice, agreements often also define what is considered know-how and may be supplemented by internal poli- cies and technical access controls to reinforce con- fidentiality. 6.5 Licensing and Assignment In Mexico, know-how may be assigned or licensed independently from trade secrets or patents, as it is not subject to a specific intellectual property regime and is primarily governed by contract law. There are no statutory formalities for the assignment or licensing of know-how. In practice, the arrange- ment is valid as a matter of contract, and parties may freely agree on terms, provided general requirements for contractual validity are met. No recordal, notarisa- tion, or registration is required.
6. Know-How 6.1 Definition and Legal Basis of Know-How There is no statutory definition of “know-how” under Mexican intellectual property legislation. In practice, know-how is generally understood as practical, tech- nical, and operational knowledge derived from experi- ence, which may include processes, methods, or skills that are not necessarily fully documented. Know-how differs from trade secrets in that it does not strictly require absolute secrecy or the same level of protective measures, nor is it always necessary for it to have an independent economic value derived exclusively from secrecy. Trade secrets, by contrast, require confidentiality, lawful control, economic value derived from secrecy, and the adoption of reasonable measures to maintain confidentiality. Know-how is not recognised in Mexico as an inde- pendent intellectual property right or statutory prop- erty right. Instead, it is primarily protected through contractual arrangements (such as confidential- ity agreements, technology transfer agreements, or licensing agreements) and, where applicable, through general principles of civil liability and unfair competi- tion. 6.2 Protectability Requirements and Scope As mentioned in 6.1 Definition and Legal Basis of Know-How , know-how does not have a formal statu- tory definition of protection requirements in Mexico and, unlike trade secrets, it is not subject to a strict legal test of secrecy, novelty, or economic value as a condition for protection. However, in practice, its enforceability depends on the existence of contrac- tual obligations and, where applicable, whether the information qualifies as a trade secret under the FLPIP. 6.3 Ownership, Creation and Employee Know-How In Mexico, know-how created by employees in the course of employment and within their assigned duties is generally presumed to belong to the employer, par-
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