contract-law intellectual-property employment mexico
Can a Mexican employer really claim rights to IP created before the start of employment if not declared?
<blockquote>
<p>THE  EMPLOYEE  expressly  acknowledges  that pursuant to Article 163 of the Mexican Labor Law, all rights to any inventions, improvements  and  any  intellectual  property  rights
(“Intellectual/Industrial Property Rights”), made, written, designed,
developed or produced by THE EMPLOYEE for the duration of this
contract, is property of THE EMPLOYER and must be assigned to the
latter. THE EMPLOYER will have the right to freely develop and alter
such  Intellectual/Industrial  Property  Rights  and  to  license  and
assign them to third parties.
THE  EMPLOYEE  agrees  to  promptly  disclose  any  invention,
improvement  or  intellectual  property  during  the  course  of
employment and undertakes without any additional compensation
to execute all such deeds and documents that, at THE EMPLOYER’s
sole  discretion,  are  necessary  or  desirable  in  order  for  THE
EMPLOYER  being  able  to  protect,  register,  maintain  and  in  any
other way be able to fully  enjoy its right of intellectual property
referred to under this section.
THE EMPLOYEE must notify THE EMPLOYER in writing with respect
to any invention, improvement or intellectual property conceived
before the signing date of this contract. Absence of such notice will
result  in  any  invention,  improvement  or  intellectual  property
devised by THE EMPLOYEE to be subject to the obligations above.</p>
</blockquote>
<p>This clause looks incredibly suspicious to me wrt the potential for abuse, especially the last sentence. Or is my interpretation wrong and this clause doesn't mean that the company can seize any IP that I &quot;conceived&quot; before employment and didn't notify the employer about?</p>
<p>If this is the actual meaning, can such a clause be actually enforced or it has no legal power?</p>

<blockquote>
<p>the company can seize any IP that I &quot;conceived&quot; before employment and didn't notify the employer about?</p>
</blockquote>
<p>Only if your pre-existing IP could be reasonably alleged to have ensued pursuant to your employment. Your notification preemptively strikes the presumption that that IP ensued during employment.</p>
<p>IP (pre-existing or otherwise) that clearly is unrelated to your job responsibilities would not need to be disclosed. That is because that IP is beyond the scope of the contract/employment. However, the wider the scope of your job responsibilities (or how these are phrased), the riskier that the clause might be construed to encompass your pre-existing, non-disclosed IP.</p>
<blockquote>
<p>can such a clause be actually enforced or it has no legal power?</p>
</blockquote>
<p>It is enforceable to the extent that you are given the opportunity to timely exclude from employer's &quot;inventory&quot; or &quot;assets&quot; your prior IP. That being said, proving that you created your non-disclosed IP before the contract was entered would defeat the clause because a contract cannot contravene legislation (in this case, article 163 of the <a href="https://www.gob.mx/cms/uploads/attachment/file/156203/1044_Ley_Federal_del_Trabajo.pdf" rel="nofollow noreferrer">Mexican Labor Law</a>).</p>
<p>If you produce a notification, it is in your best interest to secure some evidence that the employer received it. Otherwise, you are giving the employer the opportunity to steal your disclosed prior IP by falsely denying that you gave a notification listing it. Requiring the employer to sign a [receipt-]copy is the most straightforward approach to secure that evidence.</p>
