26 de agosto de 2025
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On August 18, 2025, the Brazilian Patent and Trademark Office (BPTO) published Consultation No. 3/2025, with the aim of gathering comments from the public on the draft Guidelines for the Examination of Patent Applications related to Artificial Intelligence (AI). The initiative seeks to consolidate technical parameters to guide the analysis of these applications, in accordance with the Intellectual Property Law (LPI), No. 9,279/1996, and other applicable regulations.
According to the draft guidelines, in order to facilitate the analysis, AI-related creations will be classified into three categories: (i) AI models and techniques, aimed at developing AI structures and methods themselves; (ii) AI-based inventions, in which AI is an integral part of the invention and of the solution to the specific technical problem addressed by the invention; and (iii) AI-assisted inventions: those in which human intervention is presumed at some stage of the process — whether in identifying a technical problem, configuring the AI to achieve a specific objective, implementing and validating the solution proposed by the AI as a concrete and feasible response to the identified technical problem, or in applying the solution to an industrial problem. The guideline further emphasizes that the inventive conception and the definition of the solution to be protected must result from human intellectual work. The text also clarifies that inventions generated entirely autonomously by AI are not eligible for patent protection, since authorship must be attributed to a natural person.
The draft also addresses what is not considered an invention under Article 10 of the Brazilian Industrial Property Law (LPI) and its relationship with AI-related inventions. Among other guidelines, the document highlights that, in the case of AI-assisted inventions, since AI is merely a tool and does not form part of the invention itself, the use of such technology to reach the inventive result is irrelevant when assessing whether the invention falls within the scope of patent protection provided for in that article.
The document further clarifies that computer programs are not considered inventions per se. However, an invention implemented by means of software may be patentable, provided that the requirements of patentability are met. Accordingly, AI-based inventions, as well as AI models and techniques, when implemented in software, must be claimed as computer-implemented inventions (CII).
With regard to sufficiency of disclosure, as set forth in Article 24 of the LPI, the draft establishes that the patent specification must enable a person skilled in the art to carry out the invention. For each category, specific examples and guidelines are provided: for AI models and techniques, all elements must be included, such as network architecture, parameters, types of input and output data, and training and validation procedures; for AI-based inventions, the dataset enabling the system to function and the relationship between input and output data must be described; and for AI-assisted inventions, there must be a sufficient description of how the solution proposed by the AI materializes in the real world.
The draft then sets out guidance on claim drafting, stating that claims solely directed to the AI method or technique itself, or to the database, will not be accepted as patentable. Claims must specify the concrete application of the AI model or technique, avoiding generic formulations. If a claim is initially filed under an inadequate category, it must be reformulated to correctly reflect the AI application, being considered merely a “material error,” not a violation of Article 32 of the LPI.
Finally, the document details the criteria for assessing inventive step, clarifying that the mere use of AI to automate routine tasks or perform calculations does not amount to inventiveness, as unexpected technical effects are required. In this respect, the following are not considered inventive: the mere combination of AI techniques; the simple substitution of models or methods; parameter adjustments or optimization processes; advantages derived solely from a specific hardware implementation; or the mere combination of known training data—unless such elements produce non-obvious technical effects for a person skilled in the art.
Consultation No. 3/2025 will remain open until October 17, 2025, and comments should be submitted using the electronic form available at Consultation No. 3/2025. After the consultation period closes, the contributions will be analyzed and consolidated by the INPI, which may incorporate them into the final text of the Guidelines.
The draft guidelines can be accessed via the link: Examination of Patent Applications Related to AI
Note: For quick release, this English version is provided by automated translation without human review.
