Possibilities of patent protection in Brazil

by | Feb 17, 2019 | Articles, Brazil, Intellectual Property, Patents

The operation of national companies in a highly competitive scenario, by Victor Fachim

“Bank of America requires patent for Blockchain-based processing system,” “Mastercard obtains patent to create a blockchain coupon authentication system,” “Uber wants to patent artificial intelligence that detects if you’re drunk,” “New Walmart patent proposes access to medical records by blockchain technology,” “People’s Bank of China registers patent for digital foreign currency portfolio,”  “IBM seeks new patent to track code updates in a blockchain,” “Microsoft registers patent for artificial intelligence and “IBM patent technology to use artificial intelligence at traffic lights” are just a few examples of headlines that have been posted on Brazilian technology websites over the last few months.

More attentive readers, even without thoroughly exploring the content of such news, may note that companies developing solutions that orbit technologies mainly linked to the concepts of artificial intelligence, machine learning and blockchain, have adopted a more diligent, protectionist stance regarding their “digital solutions”.

However, this news deals with events observed abroad, especially in territories where these types of technology bloom and, more importantly, in territories where local law allows for patent protection of such inventions.

On the other hand, the shortage of similar news portraying the national scenario is notable. Also evident is the lack of articles that discuss the possibility of patent protection of such inventions in Brazil, under the Brazilian legal system.

Considering that the news published in Brazil covers nothing but international movements and tendencies, and given the lack of media disclosure about possible “digital solutions” developed in Brazil, it is reasonable to question whether these inventions can receive patent protection within the national territory.

At the outset, it is always important to remember that Statute 9,279/9610, which regulates the rights and obligations related to industrial property, does not consider as an invention, among other hypotheses, “purely abstract conceptions”, ” accounting, financial, and commercial principles or methods,” and “computer software itself”. This means that the Brazilian legal system does not provide for the possibility of patent protection for possible “digital solutions” based on such hypotheses.

It is also worth noting that the protection of software per se is governed by Statute 9,609/9811, which provides for the protection of the intellectual property of computer software under copyright. In general terms, the protection provided for in this Statute is limited to the software’s source code, and therefore does not cover the functional principle or any possible technical effect associated to the applied algorithm.

Thus, on an initial analysis, one could reach the conclusion that it is not possible to achieve patent protection of “digital solutions” in Brazil. This conclusion can be further reinforced by the fact that the aforementioned Brazilian Statutes were drawn up and came into force at a time when these “digital solutions”, possible only thanks to the most modern efforts and technological advances, could not even be imagined.

Fortunately, this possible conclusion is wrong. This is because the BRPTO – the National Institute of Industrial Property – following a global trend, and the main reasoning in national doctrine, already officially and systematically recognizes the possibility of patent protection of inventions implemented by computer software.

In addition, the BRPTO categorizes these inventions into “processes that use physical quantities to generate a physical product or effect,” “processes that use physical quantities to generate a virtual product,” and “processes that use abstract quantities to generate a virtual product.” A method of controlling an industrial machine, a method for converting time and distance information into a chargeable proportional value and a method of data encryption are, respectively, practical examples of these categories conceived by the BRPTO.

Of course, for an invention implemented by computer software to be patent protected, similar to any other industrial invention, it is necessary that it be new, inventive and industrially applicable. Also, in order to be patent-protected, an invention implemented by computer software must achieve a technical effect, in addition to solving a technical problem.

This means that the Brazilian legal system, mainly due to the BRPTO’s modern view, provides a very safe and predictable scenario regarding the possibilities and guarantees of patent protection for “digital solutions”.

A reflection of this security and predictability, already perceived by large multinational technology companies filing patent applications in Brazil, can be measured in numbers: in the last five years, the BRPTO has already published nearly 45 patent applications related to machine technologies and applications of machine learning, nearly 25 patent applications related to artificial intelligence technologies and applications, and nearly 10 patent applications related to blockchain technologies and applications. Considering that patent applications filed in the last 18 months are still confidential, these figures are expected to increase.

Similarly, several other large multinational technology companies – whose “digital solutions” are certainly installed in the smartphones of a large part of the Brazilian population – have also filed patent applications with the BRPTO.

Here are some approximate figures: Uber Technologies (a technology company active in the area of private urban transport) has 10 published patent applications; Facebook (a technology company active in the area of network and social media) has 230 published patent applications, Airbnb Technologies (a technology company active in the real estate leasing) has 4 published patent applications, Netflix (a technology company active in the area of entertainment via streaming) has 8 published patent applications, Paypal (a technology company active in the area of money transactions) has 13 published patent applications, Linkedin Corporation (a technology company active in the area of network and social media) has 7 published patent applications. For the reasons commented above, these numbers are expected to increase.

By contrast, the aforementioned shortage of news related to the topic of patents, “digital solutions” and national technology companies is just one of many other indications that allow more alert readers to note the lack of concern that national technology companies – startups, generally – have in relation to their “digital solutions”.

The inertia of national technology companies – usually the result of lack of knowledge about the subject or a lack of financial resources – is extremely dangerous. After all, extremely innovative “digital solutions” may be thrown into the public domain, thereby damaging the fair valuation and sustainability of these companies’ financial health.

Therefore, to avoid these potential irreparable risks, in addition to maintaining a competitive position against large multinational technology companies, it is always recommended that national technology companies, especially application startups and other “digital solutions”, seek patent protection for their inventions.

Article published in Monitor Mercantil. Read on

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