AI and machine learning – what is patentable in Brazil?

AI is at the core of several new products and processes. However, due to its algorithmic nature, it raises several questions as to its patentability. The EPO’s latest examination guidelines (Section 3.3.1) shed some light on these questions by reinforcing the longstanding concept of the technical approach. These guidelines state that “such computational models and algorithms are per se of an abstract mathematical nature, irrespective of whether they can be ‘trained’ based on training data”. This means that the core technology behind AI is not patentable in Europe. However, an application of AI that results in a technical effect could be eligible for protection.

On 29 December 2020 the Brazilian National Institute of Industrial Property (INPI) published a revised version of its guidelines for the examination of software implemented inventions. In Section 13, these guidelines simply state that “techniques of artificial intelligence (AI), covering machine learning and deep learning, and other techniques, when applied to the solution of technical problems, can be considered inventions”. INPI’s historical backlog of patent applications also means that there is only a limited  number of decisions available to clarify this issue.

Some information in the guidelines gives hope that the practice is moving forward. The EPO has always been a benchmark institute for INPI, so patent practice in Brazil has largely been influenced by Europe’s processes. Although concise, INPI’s guidelines include a condition according to which AI techniques could be considered inventions when they are “applied to the solution of technical problems”. This is largely in line with the EPO’s understanding. Finally, mathematical methods and other abstract concepts are excluded from patentability in Brazil, according to Sections 10.I and 10.II of Brazil’s Patent Statute (Law 9.279/96), for not being inventions. Therefore, excluding the underlying concepts behind training of classifiers from patentability, for example, is consistent with Brazilian law.

It does not seem that the core technology behind AI is eligible for patent protection in Brazil – this is limited to technical applications of AI. It will be interesting to see how Brazilian examiners handle each case and it is likely that the question of what is exactly technical will be raised regularly.