BRPTO Opens Public Consultation on New Examination Guidelines for AI-Related Inventions
The Brazilian Patent and Trademark Office (BRPTO) has made an important announcement regarding the Examination Guidelines for Patent Applications that involve technologies related to Artificial Intelligence (AI). This is part of Public Consultation #3/2025, as published in the Federal Official Gazette #155 on August 18, 2025. Interested parties have until October 17 to contribute their insights and feedback to the proposed text.
The draft delineates AI-related inventions into three main categories. While the finer details of these categories are outlined in the document, there are overarching requirements that apply to AI-related inventions. Crucially, any claims directed solely to AI models or techniques, without tying them to a specific technical field, will not be accepted. Additionally, datasets used in AI processes such as training, testing, or validating do not qualify for patent protection. These stipulations align with Article 10, item I of the Brazilian Patent Statute.
There is, however, room for processes that involve mathematical methods, as long as they produce technical effects and comply with other provisions of Article 10 of the Brazilian Patent Statute. It’s essential that any process shows real-world technical application to qualify for patenting.
Crucially, the BRPTO has clarified its stance on AI autonomy in the realm of inventions. Inventions autonomously generated by AI, without human intervention, are not eligible for patent protection. This stance is rooted in Article 6 of the Brazilian Patent Statute, which mandates that the authorship of an invention be credited to a natural person. This echoes previous sentiments from BRPTO expressed in the Opinion of the Specialized Federal Attorney’s Office #00024/2022.
The proposal requires that AI-based inventions and AI models and techniques implemented via software adhere to the criteria set in the Examination Guidelines for Computer-Implemented Inventions (CII), outlined by BRPTO/PR Ordinance #411/2020. Notably, software programs themselves continue to be classified as non-inventions and hence not eligible for patenting.
When it comes to the sufficiency of disclosure, the draft stresses that the specification must include all necessary technical details that would allow someone skilled in the art to reproduce the invention without undue experimentation. For AI models or techniques, this includes specifying data types involved in the process. For instance, if dealing with an AI system that manages temperature control in household refrigerators, one might need to describe how the AI collects and processes data to adjust compressor operation. Moreover, it should detail the dataset used, the input-output correlation, data processing, algorithms, model parameters, training techniques, validation, evaluation processes, and interactions with other technical elements.
The proposal also stipulates that the technical application should be plainly articulated at the start of the claim. Examples include phrases like: “Method for recognizing handwritten characters using support vector machines, characterized in that…” or “Facial recognition method using neural networks, characterized in that…”.
Interestingly, the draft provides a mechanism to modify claims initially targeted at an AI model deemed inadequate under Article 25 of the Brazilian Patent Statute. These claims can be redrafted to conform to technical requirements and address a technical problem using AI, without infringing Article 32 of the Brazilian Patent Statute.
Claims that are focused solely on the AI model or technique itself—such as those involving neural networks, genetic algorithms, and training methods—are specifically prohibited by the draft guidelines. These guidelines pinpoint scenarios to evaluate non-obviousness, including the utilization of AI to automate processes, combinations of AI techniques, model or technique substitutions with equivalents, parameter adjustments, and inventions resulting from a synergy between hardware and AI algorithms.
For those wishing to examine the detailed draft of the New Examination Guidelines for AI-Related Inventions, it is available in Portuguese here.
