Patentability of AI and global harmonization: An analysis of the current guidelines in Brazil and the IP5 offices

Abstract

Innovations related to artificial intelligence can impact many technological fields and several sectors from industry, including patent offices and the patent system. Major patent offices have been updating their examination guidelines to address the particularities of AI inventions, providing legal certainty and predictability to the players in the patent system. The present study has explored the responses of the IP5 patent offices and Brazil's INPI to these challenges, revealing key areas of harmonization, divergence, and areas requiring further development. The analysis shows that, while the IP5 offices have taken steps to adapt their patent guidelines to account for the unique features of AI technologies, Brazil's INPI lags behind in terms of clarity and specificity. This works also analyses the level of harmonization among the IP5, where we conclude that significant differences remain between their approaches, especially in the case of the USPTO, which continues to rely heavily on judicial interpretations. Brazil's INPI must continue to evolve its guidelines, and there is an opportunity to observe the behavior of the IP5 to incorporate best examination practices in Brazil. By aligning with international best practices and offering clear, detailed guidance, patent offices can provide the legal certainty necessary to foster sustained investment in AI, ensuring that these transformative technologies benefit both inventors and society at large.