MEXICO Law and Practice Contributed by: Heidi Lindner and Humberto Vega, Arochi & Lindner
products from the market and suspension of services or commercial activities, among others, depending on the nature of the infringement and the final injunction issued. Patentees are not required to pay any bond for the final injunction to be enforceable. It is executed and remains in force as long as the affected industrial property right is valid. Stay of a Final Injunction Finally, it is important to mention that it is possible to obtain a stay of a final injunction through ordinary means of defence, either through a review appeal or a contentious trial before the SEPI. For this stay to be granted, it is necessary to demonstrate a prima facie case and that the suspension does not affect social interest and public order. Also, if the stay could cause economic harm to the patentee, a bond must be granted, the amount of which will be determined by the authority or court handling the case. 5.3 Discretion to Award Injunctive Relief (Final or Preliminary) The Difference Between Damages and Injunctive Relief It is important to clarify that in Mexico, the concepts of damages and injunctive relief are different legal entities and have different purposes in the legal system. While damages refer to monetary compensation awarded to one party for loss or damage suffered due to the actions of another party, precautionary measures are court or authority orders that seek to prevent harm or ensure compliance with a future court decision. Impact on Public Order and Social Interest One of the main arguments to limit the scope of pre ‑ liminary injunctions, or even to deny them in cases of life sciences and pharmaceutical patent litigation, is the impact on public order and social interest. Although these are indeterminate legal concepts, it is up to the courts to determine on a case-by-case basis whether the preliminary injunction could affect the population or public order. Examples of the above are situations in which a pre ‑ liminary injunction could result in a shortage of an essential medicine or the interruption of vital treat ‑
ment for patients. In cases like these, the IMPI or the jurisdictional authority may determine that public interest and the protection of public health prevail over the rights of the patentee, since access to essential medicines is fundamental to the human right to health. Proportionality of a Precautionary Measure Likewise, the authority may consider the proportion ‑ ality of the requested precautionary measure. This involves assessing whether the restriction imposed by the measure is reasonable and proportional in rela ‑ tion to the potential harm that patent infringement may cause to the patentee. In this context, it can be argued that less restrictive measures, such as the payment of financial compensation, may be sufficient to pro ‑ tect the interests of the patentee without negatively affecting public welfare or the interests of the alleged infringer. 5.4 Damages Methods for Calculating Damages According to the LFPPI, several methods can be used to calculate damages in cases of infringement of industrial property rights. Below are the methods and how they are applied. Value of infringed products or services • Calculation – this is calculated based on the market price or the suggested retail price of the infringed products or services. • Application – this method is useful when there is a clear market for the product or service, and it is possible to determine a target market price. Lost profits • Calculation – this is based on the profits that the patentee would have obtained if the infringement had not occurred. • Application – this method is applicable when the patentee can clearly demonstrate lost profits due to infringement. That is, a causal link can be dem ‑ onstrated between the decrease in profits and the beginning of the infringing conduct. Profits obtained by the infringer • Calculation – this focuses on the profits that the infringer has obtained as a result of the infringe ‑ ment.
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