On August 18, 2025, the Brazilian Patent and Trademark Office (BPTO) published draft guidelines concerning the examination of patent applications related to Artificial Intelligence (AI). These draft guidelines are currently open for public consultation and comments until October 17, 2025. An English version is available at the following link.
The draft guidelines specify three categories of AI related inventions:
a. AI-based inventions: Technologies where AI constitutes an integral part of the invention and the technical solution;
b. AI models and techniques: Inventions pertaining to specific AI techniques and models, such as neural networks, algorithms, and training methods;
c. AI assisted inventions: where AI is used as a searching tool for looking for a solution to a technical problem, but is not part of the invention itself.
1. Issues concerning AI assisted inventions:
i. Inventorship
The draft guidelines specify that, for AI-assisted inventions, some degree of human intervention during development is required. Such intervention may involve identifying the technical problem, configuring AI systems to achieve a specific purpose, or embodying and validating the AI-generated solution.
In the absence of adequate human intervention, the invention is deemed to be autonomously generated by AI (similar to the DABUS case) and, consequently, does not qualify for patent protection under Brazilian law, which mandates that the inventor be a natural person.
It is therefore advisable to document all human contributions during the development process of these inventions.
ii. Technical character and inventive activity
The mere use of AI as a tool does not, in itself, confer technical character or contribute for characterizing inventive activity. These requirements must be satisfied by the invention as claimed, in accordance with standard patentability criteria. AI, in this context, is regarded as an auxiliary device rather than a core inventive feature.
iii. Sufficient disclosure
When the specification indicates that the invention is AI-assisted, it should clearly describe how the solution is embodied in a real-world context and provide evidence demonstrating that the expected technical effects are achieved.
It is important to note that the guidelines do not impose an obligation to explicitly state that the invention is AI-assisted in the application.
2. Issues concerning AI based inventions and AI models and techniques
i. Patentability Requirements
An AI-related invention must meet the following criteria to qualify for patent protection:
• Provide a technical solution to a recognized technical problem and produce a novel technical effect.
• For AI-based inventions, inventive activity is evaluated based on the AI system's contribution to solving a technical problem. The achievement of a demonstrable technical effect is essential.
• The inventive step assessment should focus on the claimed technical subject matter and the technical effects achieved, rather than solely on the application of AI as a tool
It is critical to emphasize that abstract ideas, mathematical methods, data presentation forms, and datasets used for training AI are excluded from patentability, despite involving AI techniques.
ii. Sufficient disclosure and the "Black Box" Challenge
Due to the “black box” nature of many AI systems, the draft guidelines recommend adding to the specification certain technical details to ensure the requirement of sufficient disclosure is satisfied. Such details include:
• For AI-based inventions: the type of AI, its operation, details of training data, specific components, parameters, and the relationship between input data and training, validation, testing, and optimization techniques.
• For inventions relating to AI models and techniques: the algorithm, parameters, neural network architecture (e.g., number of layers, neurons per layer).
iii. Person Skilled in the Art
In analyzing inventive activity for AI-based inventions, the "person skilled in the art" should be considered as a knowledgeable individual or team familiar with AI methods as well as the technical field where AI is applied.
Given the rapid development of AI technologies, special care should be taken to avoid hindsight bias during examination.
Next steps
Although the draft guidelines largely align with European standards on AI patenting, there remains some room for improvement.
We are open to receiving your comments and suggestions regarding these Draft Guidelines, which we will carefully consider. Please do not hesitate to contact us through email patentfiling@dannemann.com.br to discuss your specific needs and how we can assist you in securing your intellectual property rights.
