Public Consultation by the BPTO on Draft Guidelines for AI Inventions

On August 19, 2025, the Brazilian Patent and Trademark Office (BPTO) launched a public consultation on the draft Guidelines for the Examination of Patent Applications related to Artificial Intelligence (AI), open until October 17, 2025.

For examination purposes, AI-related creations are classified into three categories:

• AI models and techniques (algorithms),
• AI-based inventions (AI as an integral part of the solution), and
• AI-assisted inventions (AI as an auxiliary tool).

The guidelines focus on the patentability of AI-based inventions, which shall be analyzed as a subcategory of computer-implemented inventions (CIIs). For additional information on the Brazilian guidelines for CIIs, please click here.

Regarding inventions autonomously generated by AI, these are not patentable, as inventorship must always be attributed to a natural person, in line with the position already consolidated by many jurisdictions following the DABUS case. However, the guidelines adopt a broad interpretation of “AI-assisted inventions”, recognizing AI as a tool to support the human inventor while maintaining human inventorship.

Non-patentable subject matter

The draft guidelines reaffirm the principle that computer programs, mathematical methods, and algorithms per se are not regarded as inventions under Art. 10 of the Brazilian law. In the context of AI, this means that:

• Abstract models of machine learning and data processing methods, when claimed in isolation, are excluded from patentability;
• Training data, databases, and computer programs per se are not patentable;
• Patent protection may only be recognized when these elements are applied as a technical solution to a technical problem, and are capable of obtaining a technical effect;
• Commercial, financial, educational, diagnostic, therapeutic, and surgical methods remain unpatentable, even if they use AI.

The position is considerably in line with the guidelines of the European Patent Office. However, the claim category “computer program” and similar categories remain prohibited in Brazil. On the other hand, no prohibition to natural language processing (NLP) has been raised, which indicates that protection in this field of application should be easier in Brazil than in Europe.

Sufficiency of disclosure and claim requirements

The description must be clear and complete enough for a person skilled in the art to reproduce the invention without undue experimentation. Among the main requirements:

• When the contribution of the invention lies on the technical adaptation to a specific technical field, it is necessary to provide details on the structure, functioning, and technical implementation of the AI system;
• Although it is not mandatory to provide training data, it is necessary to explain how training data and parameters are applied, at least to the extent necessary to enable the claimed invention;
• Avoiding claims that rely on generic references to “artificial intelligence” or “machine learning” without specifying the technical means by which results are achieved;
• Claims should indicate the technical application of the invention in its preamble, for example “method for facial recognition using a neural network”;
• Details of the AI system may be omitted when the inventive contribution does not reside in the AI itself and the use of such AI is already well known in the state of the art.

The guidelines include illustrative examples of what constitutes sufficient disclosure and what does not, offering applicants practical guidance when drafting applications in line with Brazilian practice.

Inventive step

According to the BPTO, inventive step should not be recognized when:

• The invention is a mere automation of known processes using AI,
• There is simple use of known AI models or training methods, replacing AI models, or mere adjustments of parameters and optimization, without demonstrating an unexpected technical effect;

Conversely, the following may constitute inventive step:

• Non-obvious functional integration between AI and other systems, or specific adaptations of models or hardware leading to unexpected technical effects;
• New methods of data collection or processing that result in concrete technical advantages;
• Architectures enabling real-time feedback and self-correction beyond the usual effects of AI.

Similar to the EPO, Brazil adopts the ‘inventive step’ approach, and the person skilled in the art can be one or a group of people combining knowledge in the technical field and the field of AI techniques.

Next Steps

The draft guidelines remain open for consultation until October 17, 2025, and adjustments may follow before their official adoption. Nevertheless, they provide valuable insight into the INPI’s forthcoming approach and highlight the importance of carefully framing AI inventions to emphasize their technical character, adequate disclosure, and non-obvious contribution to the state of the art.

For complete reference of the draft guidelines, our team prepared an English translation of the text, which can be accessed here.

For further information, or if you are interested in submitting comments to this public consultation, please do not hesitate to contact our team at mail@kasznarleonardos.com.