Newsletter - May 2019


Artificial Intelligence and the patent revolution

Artificial Intelligence and its impacts on the intellectual property system are still conjectures, but the experts in the field are already worried. And if it is too early to measure the impact of this new technological frontier, there is at least a consensus: the current established rules for patent protection, industrial designs, as well as for artistic creation, will have to be, at least, updated. “The emergence of new protection categories and the need to update Industrial Property legislation are some of the issues brought to the forefront of this admirable new world of Artificial Intelligence”, said the co-coordinator of ABPI’s Software, Computing and Internet Study Committee, Dirceu Pereira de Santa Rosa.

 In Brazil, contrary to what happens in the United States, the patentability of the various forms of AI collides with legislation. According to Article 10 of the Industrial Property Law – IPL (Law 9.279 / 96), the algorithm, being a sequence of logical steps for solving a given problem, can be considered as a computer program per se, and therefore not patentable depending on the technical nature of the problem and the solution given by the algorithm to the problem. “An algorithm claimed as a method that stabilizes the movement of a robotic arm by means of control techniques, producing novel and unexpected technical effect, is considered an invention; however, an algorithm that proposes to solve merely a mathematical function is not considered an invention because it affects Art. 10 of the IPL”, explains the co-coordinator of the Patent Committee José Eduardo Filgueiras.

 Ownership concept – If the intellectual property rights of AI are a complex matter, no less controversial is the concept of ownership of an algorithm, since it is in a constant and frantic process of mutation. “An issue to consider is how to proceed in the case of an AI invention, which is no longer the same one created a year earlier, when the patent application was filed”, Santa Rosa questions. Take the songs and inventions created by machine learning or deep learning, such as IBM’s Watson. If the machine algorithm processes a melody created by a contemporary author, how do the concepts of “composer”, “author” and “inventor” stand?

 Never take your eyes off the future – Another expected effect on account of AI systems is in the examination of patent applications that is done by IP offices professionals. It is not an overstatement to predict the use of smart searches for examinations and brands that will streamline processes, reduce costs, and eliminate the backlog. At an intermediate stage, machine learning would subsidize the examiner with accurate data, who in turn would make the final decision. The idea that, ultimately, machines would do everything, is still premature, but it is always good to keep an eye on the future, because when it is least expected it has already arrived.