The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the North American Free Trade Agreement (NAFTA) provide that the defendant shall have the burden of proof in an infringement proceeding -when the patent under analysis is a process for obtaining a product- when any of the following assumptions are met:
(i) The product obtained by the patented process is new, or (ii) That there is a significant probability that the allegedly infringing product has been manufactured by the claimed process and the patentee has failed to establish the process used.
However, Article 192 Bis of the Industrial Property Law establishes that in such proceedings, the reversal of the burden of proof is conditioned to the convergence of both aforementioned normative hypotheses, which results in a detriment to the patent holder.
Therefore, the SCJN determined to declare the unconstitutionality of article 192 Bis of the Industrial Property Law under the consideration that the content of international treaties should be privileged and only require the compliance of one of said hypotheses to reverse the burden of proof, which represents a significant advance to consolidate a system that effectively protects the exclusive rights of patent owners.