Can you patent a software in Brazil?

29/06/2021

Can you patent a software in Brazil?

In the current stage of technology development, it is possible to say that software inventions are almost everywhere (streaming services, smartphones, cars, home appliances, videogames etc.) and still spreading to many industries that had no history on developing or heavily using them. In this context, it is more and more common to listen terms related to software related innovations like machine learning, deep learning, artificial intelligence, blockchain, manufacturing 4.0 in many different markets.

As innovation and patents walk along side one another, it can be natural to ask ourselves: can software related inventions be patented? This article will seek to answer this question in the light of Brazilian Intellectual Property practice.

In Brazil, a software can be protected at least by two intellectual property rights: copyright and patents. Although many attorneys can elaborate philosophical definitions on what each one them protects, it is possible to try to summarize that copyright protection covers the source code while the patent encompasses the algorithm.

Particularly, regarding patents it is important to take into consideration that Brazilian Patent Statutes explicitly forbidden patentability of a software as such (or a software per se), which leads to the conclusion that it is possible to patent a software invention that is not considered as a “software as such”. However, it does not answer the question: what is a software as such? The Brazilian PTO examination guidelines gives us this answer. The software as such is the source code and inventions exclusively related to the source code are not eligible for patent protection in Brazil.

Therefore, said definition clarifies what is not eligible for patent protection, however, it does not define what can be patented in terms of software related inventions. In this regard, the Brazilian PTO guidelines further state that a software related invention is eligible for patent protection if it can be defined as a technical solution that solves a technical problem and generates technical effects.

Although the guidelines do not specify what exactly mean “technical” or “technical solution”, they contain several examples of eligible inventions. These examples in addition to the concept that the software related inventions are eligible provided that they are not restricted to the source code provide us with a more concrete notion of what types of software related inventions are patentable in Brazil.

Among the examples brought by the guidelines it is possible to mention: a graphic interface that associates personal notes to excerpts of an electronic document by using XML tags; a method for encrypting data; a method for compacting data; coding a radio signal received; a method for processing electrocardiographic signals to obtain parameters that can help the doctor to diagnostic a disease; a method for reducing the memory access time; a method for filtering seismic data; a method for controlling an engine by using numerical integration; a method that optimizes file management, hardware resources, memory use and/or running time; methods and systems applied to control a machine, a device or a robot etc.

Regarding artificial intelligence, the guidelines mention that AI techniques (including machine learning and deep learning) are eligible for patent protection when applied in a technical solution to a technical problem.

As can be seen from these examples, a wide variety of software related inventions can be patented in Brazil. Consequently, the general provision that rejects the patentability of software as such does not prohibit the patentability of all software related inventions. It is quite the opposite. Said provision only forbids the patentability of inventions centered in the source code, which means that, maybe, that software innovation created by your team, someone in your company or client can be patentable in Brazil.

In the current stage of technology development, it is possible to say that software inventions are almost everywhere (streaming services, smartphones, cars, home appliances, videogames etc.) and still spreading to many industries that had no history on developing or heavily using them. In this context, it is more and more common to listen terms related to software related innovations like machine learning, deep learning, artificial intelligence, blockchain, manufacturing 4.0 in many different markets.

As innovation and patents walk along side one another, it can be natural to ask ourselves: can software related inventions be patented? This article will seek to answer this question in the light of Brazilian Intellectual Property practice.

In Brazil, a software can be protected at least by two intellectual property rights: copyright and patents. Although many attorneys can elaborate philosophical definitions on what each one them protects, it is possible to try to summarize that copyright protection covers the source code while the patent encompasses the algorithm.

Particularly, regarding patents it is important to take into consideration that Brazilian Patent Statutes explicitly forbidden patentability of a software as such (or a software per se), which leads to the conclusion that it is possible to patent a software invention that is not considered as a “software as such”. However, it does not answer the question: what is a software as such? The Brazilian PTO examination guidelines gives us this answer. The software as such is the source code and inventions exclusively related to the source code are not eligible for patent protection in Brazil.

Therefore, said definition clarifies what is not eligible for patent protection, however, it does not define what can be patented in terms of software related inventions. In this regard, the Brazilian PTO guidelines further state that a software related invention is eligible for patent protection if it can be defined as a technical solution that solves a technical problem and generates technical effects.

Although the guidelines do not specify what exactly mean “technical” or “technical solution”, they contain several examples of eligible inventions. These examples in addition to the concept that the software related inventions are eligible provided that they are not restricted to the source code provide us with a more concrete notion of what types of software related inventions are patentable in Brazil.

Among the examples brought by the guidelines it is possible to mention: a graphic interface that associates personal notes to excerpts of an electronic document by using XML tags; a method for encrypting data; a method for compacting data; coding a radio signal received; a method for processing electrocardiographic signals to obtain parameters that can help the doctor to diagnostic a disease; a method for reducing the memory access time; a method for filtering seismic data; a method for controlling an engine by using numerical integration; a method that optimizes file management, hardware resources, memory use and/or running time; methods and systems applied to control a machine, a device or a robot etc.

Regarding artificial intelligence, the guidelines mention that AI techniques (including machine learning and deep learning) are eligible for patent protection when applied in a technical solution to a technical problem.

As can be seen from these examples, a wide variety of software related inventions can be patented in Brazil. Consequently, the general provision that rejects the patentability of software as such does not prohibit the patentability of all software related inventions. It is quite the opposite. Said provision only forbids the patentability of inventions centered in the source code, which means that, maybe, that software innovation created by your team, someone in your company or client can be patentable in Brazil.











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