By: André Venturini, Venturini IP
As the use of artificial intelligence (AI) and machine learning technology continues to grow, so does the number of patents related to these fields. However, with a significant backlog of patent applications, Brazil is facing challenges in keeping up with global developments in AI patent rules. In this article, we will explore some details about AI and machine learning patents in Brazil and how it compares to other countries.
1. The Patentability of AI and Machine Learning in Brazil
AI technology is at the core of numerous new products and processes, but its algorithmic nature raises several questions about its eligibility for patent protection. In Europe, the EPO’s latest examination guidelines state that the core technology behind AI is not patentable because it is of an abstract mathematical nature, regardless of whether it can be “trained” based on training data. However, if an application of AI results in a technical effect, it could be eligible for protection.
In Brazil, the National Institute of Industrial Property (INPI) has published guidelines for the examination of software-implemented inventions that state techniques of AI, including machine learning and deep learning, can be considered inventions if they are applied to the solution of technical problems. This is largely in line with the EPO’s understanding. However, mathematical methods and other abstract concepts are excluded from patentability in Brazil, according to the Patent Statute (Law 9.279/96). Therefore, excluding the underlying concepts behind training of classifiers from patentability is consistent with Brazilian law.
2. The Eligibility of Technical Applications of AI and Machine Learning in Brazil
The INPI’s guidelines offer hope that the practice of patentability in Brazil is moving forward. Although the historical backlog of patent applications means that there are only limited decisions available to clarify this issue, Brazilian examiners are likely to focus on the technical applications of AI when considering patent eligibility.
It is important to note that the core technology behind AI is not eligible for patent protection in Brazil. Instead, it is limited to technical applications of AI. This means that the question of what is considered “technical” will be raised regularly, and Brazilian examiners will need to determine whether a particular AI application satisfies this requirement. Read about design registration in Brazil to secure your IP rights.
As AI technology continues to advance, it is crucial to understand the eligibility of AI and machine learning patents in Brazil. While the country has a backlog of patent applications, INPI’s guidelines provide some clarity on the patentability of AI and machine learning when applied to the solution of technical problems. It is likely that Brazilian examiners will focus on the technical applications of AI and machine learning to determine eligibility for patent protection.
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