MEXICO Trends and Developments Contributed by: Roxana Aispuro, BC&B Law & Business
for that trade secret to be considered as such and for the party to transmit the trade secret or authorise its use. It is important to point out that, in agreements through which technical knowledge, technical assistance, or the provision of basic or detailed engineering are transmitted, confidentiality clauses may be established to protect the trade secrets included in the knowledge to be trans - mitted. These clauses must specify the confi - dential aspects of the knowledge. Moreover, the FLPIP maintains the previous law’s exceptions to the information considered a trade secret. However, it adds information that is easily accessible in industry circles to those exceptions. Documenting trade secrets The material means of documenting trade secrets are now broader, as the FLPIP includes any known or unknown materials. Unlike under the previous law, the information contained in a trade secret need not refer to the nature, char - acteristics or purposes of: • a product; • a method; • a production process; • a distribution process; or • the commercialisation of a product or provi - sion of a service. Improper appropriation of trade secrets The FLPIP establishes that the improper appro - priation of information that is considered a trade secret constitutes infringement. It also catego - rises as a crime the act of accessing without authorisation a trade secret kept in a computer system for the purposes of causing damage or obtaining an economic advantage. For clarity, as
previously mentioned, Article 164 of the FLPIP establishes what is not considered improper appropriation. Non-disclosure obligations Article 169 of the FLPIP maintains the authori - ties’ obligation to adopt necessary measures to prevent the unauthorised disclosure of a trade secret in judicial or administrative procedures. However, the obligation to not use or disclose the trade secret by any interested party now also applies to: • the representatives of the interested party or any party authorised thereby to hear and receive legal notices; • judicial or administrative officials; and • witnesses, experts, or any other parties that are involved in the judicial or administrative processes or who have access to documents that are part of such processes. Penalties for infraction Under Article 386 of the FLPIP, the improper appropriation of information that is considered a trade secret – as well as the production, offer for sale, sale, import, export or storing of prod - ucts or services that use a trade secret – are expressly considered to be administrative infrac - tions. According to Article 388 of FLPIP, the fines applicable to a party that commits an adminis - trative infraction are higher than those under the previous law. Outlook The identification, management and protection of trade secrets in Mexico is a challenge due to the nature of the information involved and treated as a trade secret. It is very important to define, implement and adopt clear policies and best practices within companies and institutions
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