Author: Andre Venturini, Venturini IP
As the use of artificial intelligence (AI) and machine learning technologies increases, so does the number of patents related to these fields. However, facing a significant backlog of patent applications, Brazil has challenges keeping up with global developments in AI patent rules. In this article, we explore the details of AI and machine learning patents in Brazil and how they compare to other countries.
table of contents
1. AI and Machine Learning Patentability in Brazil
2. Eligibility of AI and Machine Learning Technological Applications in Brazil
1. AI and Machine Learning Patentability in Brazil
AI technology is at the heart of many new products and processes, but its algorithmic nature raises some questions regarding its eligibility for patent protection. In Europe, the European Patent Office’s (EPO) latest examination guidelines state that the core technology behind AI is unpatentable due to its abstract mathematical nature, regardless of whether it can be “trained” based on training data. However, if the application of AI produces a technical effect, it may be eligible for protection.
In Brazil, the National Institute of Industrial Property (INPI) has published guidelines for the examination of software-implemented inventions, indicating that AI techniques, including machine learning and deep learning, can be considered inventions when applied to solving technical problems. This is largely consistent with the understanding of the European Patent Office (EPO). However, in Brazil, mathematical methods and other abstract concepts are not patentable, according to the Patent Law (Law 9.279/96) . Therefore, declaring the concept behind training a classifier unpatentable is consistent with Brazilian law.
2. Eligibility of AI and Machine Learning Technological Applications in Brazil
The INPI guidelines offer hope that patentability practice in Brazil is moving forward: although a historic backlog of patent applications means that only limited decisions are available to clarify the issue, Brazilian examiners are increasingly focusing on the technical application of AI when considering patent eligibility.
It is important to note that AI core technologies are not eligible for patent protection in Brazil. Instead, they are limited to the technical application of AI. This means that the question of what counts as “technical” is regularly raised and Brazilian examiners must determine whether a particular AI application meets this requirement. Read more about design registration in Brazil to protect your IP rights.
3. Conclusion
As AI technology continues to advance, it is important to understand the eligibility of AI and machine learning patents in Brazil. While a backlog of patent applications exists, the INPI guidelines provide some clarity on the patentability of AI and machine learning when applied to solving technical problems. Brazilian examiners will likely focus on the technical application of AI and machine learning to determine eligibility for patent protection.
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