BY DANIEL SANCHEZ, MANAGING INTELLECTUAL PROPERTY, INTERNATIONAL BRIEFINGS, APRIL 2009.
Since 2000, the proper venues in which to challenge decisions from IMPI included the review recourse proceeding before IMPI itself and/or the nullity trial before the Federal Court for Tax and Administrative Affairs (FCTAA).
Last year, the Supreme Court, through a jurisprudence that is mandatory for all court systems, added the constitutional trial known as an “amparo suit” to the traditional venues of appeal.
In light of such jurisprudence, a decision from IMPI can now be appealed via three options, with the following general characteristics:
Review recourse: IMPI’s officers usually confirm the decisions of the inferior officers. Thus this venue is not commonly recommended, unless there has been a clear mistake by the authority. The resolutions issued can be further appealed in two additional stages.
Nullity trial: The nullity trial is brought before the FCTAA, the Court with original jurisdiction to review appeals against decisions issued by administrative authorities such as IMPI. This Court has a specialised court for IP matters that began operating on January 5 2009.
The FCTAA has full jurisdiction to review the case de novo , which implies that the merits of the case will be reviewed. Also, the stay that this Court is able to grant could have beneficial effects. However, the Court is severely backlogged, which implies long periods of time before obtaining a decision and subsequent compliance by IMPI. The decisions of the FCTAA can be appealed before a Circuit Court.
Amparo suit: The advantages of this venue are that, due to requirements of the procedural law, cases are decided in a shorter time frame, ranging from 2-5 months, with stays being instituted very quickly, within a 2 day period after filing of a suit.
The main disadvantage is that, under the Amparo law, the Judge is bound to first find the clear error in the decision under review and is not entitled to review the case de novo. Thus, many of the decisions in Amparo suits are remanded to IMPI for further consideration, with certain guidelines that may be concerned mainly with the due process of law. The decisions of the District Court can be appealed before a Circuit Court.