Article | Artificial Intelligence: Impacts and Challenges in Brazil

In an increasingly innovative society, the development of artificial intelligence (AI) is unquestionable, and present in countless fields, from artistic to technical ones, such as health, telecommunications, transport, and security. In the context of machine learning, challenges that intellectual property (IP) has been facing, to answer previously unimaginable questions, is the subject of intense debates around the world lately, including Brazil.

In view of computer systems carrying out tasks previously dependent on human intelligence, the discussion has arisen about the authorship of artistic creations or regarding the inventor of patentable inventions and whether it would be protected by Copyright or Industrial Property Law (IPL). Within the scope of industrial property, one of the most emblematic cases stands out: the Dabus robot and its inventions.

With sophisticated technology to develop patentable inventions, Dabus was not just a tool used by researchers, a situation that would not lead to such debates. As stablished in the international application IB2019/057809, Stephen Thaler, Applicant of several applications filed in different patent offices, such as USPTO, UKPTO, BRPTO, and the Australian Patent Office, noticed that the machine autonomously developed such innovative inventions. Then, the Applicant considered Dabus as the inventor of the subject matter sought for protection.

However, the USPTO, UKPTO, and the Australian patent office rejected the invention at the administrative stage, taking as legal basis the need for the inventor to be a natural person. In the judicial sphere, the USA and UK maintained their previous position. Nonetheless, surprisingly, the Federal Court of Australia has reversed the administrative decision from rejection to allowance, considering that the concept of inventors should be consistent with the reality of current technology, in a flexible and evolving way.

Brazil was also chosen as a country of interest for AI protection. In this regard, the BRPTO’s position followed the USA and UK’s legal decision, both in the administrative and appeal spheres, as can be seen by the maintenance of the decision to withdraw the patent application BR 112021008931-4. The notice of the appeal refusal was published in the Official Bulletin (RPI) of September 19, 2023. Thus, according to the BRPTO, the application contravenes the provisions of Article 6 of the IPL, which was respectfully reinforced in the appeal phase by the Brazilian Board of Appeal, but, at the same time, acknowledging that the topic is thought-provoking. That is, “the opinion acknowledges that the normative framework that regulates the acquisition of intellectual property rights has historically ignored the possibility that non-human figures or machines may be authors of artistic works or inventions”.

Therefore, IP legislation around the world will need to seek solutions to all issues relating to creations developed by increasingly sophisticated AI systems. Monitoring technological development is highly recommended, to ensure the encouragement of innovation and economic growth in countries, and the Brazilian IP field has been updated to seek the best protection for IP assets.

References:

https://www.ipstars.com/NewsAndAnalysis/The-latest-news-on-the-DABUS-patent-case/Index/7366

https://exame.com/bussola/propriedade-intelectual-e-inteligencia-artificial-um-desafio-emergente/

https://patentscope.wipo.int/search/pt/detail.jsf?docId=WO2020079499&_cid=P22-LNIZHR-28986-1

Author: Julia Sandes, Patent Specialist