PATENT APPLICATIONS INVOLVING COMPUTER-IMPLEMENTED INVENTIONS IN BRAZIL
In the age of smartphones, internet of things and cloud computing, it is no longer possible to imagine large parts of technology without software. Accordingly, many of the current innovations are made in the field of digital data processing and may have a minimum of one feature that is implemented using – at least partially – a computer program.
However, under the Brazilian Industrial Property Law (Federal Law 9,279/96), computer programs for data processing units as such are expressly excluded from patent protection. Thus, the fact that a data processing unit is controlled via a program to achieve a certain result is not sufficient for the program to be patented in Brazil.
On the other hand, patents for computer-implemented inventions are still allowed. Different from the protection of the software per se, a computer-implemented invention involves the use of a computer or other programmable apparatus, where one or more features are processed wholly or partly by means of a computer program.
On December 29th, 2020, the Brazilian Patent and Trademark Office (INPI) published an updated version of the Guidelines for Examination of Patent Applications Involving Computer Program-Implemented Inventions. This updated version has been in force since January 1st, 2021.[1]
The publication updates the former Guidelines and, among other matters, better define the scope of some terms such as “algorithm”, “computer programs”, “set of instructions” and “expression of a set of instructions”.
Another well received addition to the Guidelines relates to protection of datasets, a relevant feature in connection with Artificial Intelligence related inventions. Although the Guidelines establish that data structures per se are not considered an invention, it is outlined that a creation that uses or generates data structures may be considered an invention.
Some highlights from the new Guidelines also include detailed explanations about the non-patentable creations which comprise mathematical methods; business, accounting, financial, education, publicity, lottery, and supervision or auditing methods; diagnostic or therapeutic methods applied directly to a body; and the presentation of information, in the case when such techniques are implemented by a computer. The Guidelines also foresee exceptions to each of the existing prohibitions (hypotheses where a patentable invention would not be recognized), appointing that the restrictions are not absolute and can be circumvented under certain circumstances.
[1] Available at: < https://www.gov.br/inpi/pt-br/servicos/patentes/pagina_consultas-publicas/arquivos/2020_11_16___diretrizes_iic___versao_final.pdf >. Checked on September 30th, 2021.
