A very usual expression used by Mexican lawyers advising their foreign clients is that certain opinion or position is supported by a “binding” precedent, ruling or decision. I have used that expression quite often in my articles and in my own opinions.

The purpose of this post is offer a basic explanation about precedents in Mexico and their effectiveness in IP-related cases.

When I say “precedent”, I am referring to a published decision issued either by one of the salas or chambers of the Tribunal Federal de Justicia Fiscal y Administrativa or Federal Court of Tax and Administrative Affairs (FCTAA), a tribunal colegiado de circuito court of appeals or the Supreme Court. It does not mean that there are no precedents from the MPTO. The MPTO is the first instance in most patent and trademark infringement or invalidation cases, so of course there are precedents, but they are not reported or collected. Mexican lawyers learn about the precedents of the MPTO from our own experience and interchange of ideas with other lawyers and sometimes with the MPTO’s officials. Although the MPTO does not have to follow its own precedents, it always has to state the statutory provisions applicable in each case and explain the reasons of all the decisions it issues.

About the decisions of the courts, it is necessary to distinguish different situations.

First. All the decisions from the federal courts (Mexico is a federal republic, so there are also state courts; the availability of decisions from state courts vary from state to state) become public shortly after they are issued, although the information about the involved parties may not be available in most cases. This situation makes it difficult locating certain decisions if you do not have information about the case number and the court that issued the decision you are looking for.

Second. The decisions of the juzgados de distrito or federal district courts and tribunals unitarios de circuito or higher federal courts are not reported or collected, thus there are almost no references to district courts or higher federal courts as source of precedents.

Third. When a court of appeals, a chamber of the FCTAA or the Supreme Court considers that the legal issues involved in a case are particularly relevant, it may decide to prepare an abstract about the ruling (we call it tesis) and publish it in a collection of precedents issued every month: the Semanario Judicial de la Federación or Weekly Judicial Journal of the Federation (it is no longer weekly, but it kept the name) in the case of the courts of appeals and the Supreme Court, and the Revista del Tribunal Federal de Justicia Fiscal y Administrativa or Journal of the Federal Court of Tax and Administrative Affairs in the case of the chambers of the FCTAA. These published rulings constitute the precedents.

The abstract of the ruling includes the identification of the issuing court and the case number, so it is relatively easy to obtain a copy of the actual decision and get a deeper knowledge about the reasoning behind the precedent.

In a broad sense, the collection of published precedents is called jurisprudencia; in a more restrictive and technical sense, only the binding precedents are jurisprudencia. Jurisprudencia is often translated into English as ‘jurisprudence’, although the concept is much narrower under Mexican law.

Fourth. In general terms, a precedent becomes binding or jurisprudencia when the ruling has been confirmed in five consecutive decisions –in the case of courts of appeals and the Supreme Court-. A decision may also become binding when different courts of appeals, or the two specialized chambers of the Supreme Court, render contradictory rulings about the same legal issue and the Supreme Court decides which ruling must prevail.

In the case of the FCTAA, it is divided in different chambers of three judges each. There is one chamber specialized in intellectual property matters that decides most appeals against the decisions of the MPTO and the Mexican Copyright Office. The specialized chamber of the FCTAA may publish precedents, but only the precedents of the Highest Chamber of the FCTAA may become binding, if and when a ruling has been confirmed by three or five consecutive decisions, or when it decides the prevailing ruling in the case of contradictory decisions between different chambers of the FCTAA.

Fifth. A precedent may become binding for lower courts, but not for higher or equal-ranked courts. The binding precedents from the Supreme Court and the courts of appeals are binding for all the chambers of the FCTAA.

The MPTO is not a court (even if it acts like one in infringement and invalidation cases) but an administrative entity. Therefore, the MPTO has no actual obligation to follow the binding precedents issued by the courts, although it usually tries to adjust its decisions to such binding rulings.

Further, it is very usual in the Mexican practice –the MPTO, courts and lawyers included- to rely on the authority of some non-binding precedents to justify decisions, opinions and claims.