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Brazilian PTO issues an opinion declaring that Artificial Intelligence cannot be indicated as an inventor in patent application

In Brazil, the impossibility of indicating or naming an Artificial Intelligence (hereafter AI) as an inventor in a patent application was announced by the Brazilian PTO, through publication in the Industrial Property Gazette (RPI) nº 2696 of September 6, 2022, in an opinion issued for the invention patent application BR 11 2021 008931 4. This decision resulted in the publication of the withdrawal of the patent application from the Brazilian national phase, and it is elective for its Applicant to appeal against this decision.

The BPTO’s Federal Attorney relied on the provisions of Article 6 of Law No. 9279/96 (hereafter IP Law), on CUP (Paris Union Convention) and on TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights) to issue the opinion contained in Opinion No. 00024/2022/CGPI/PFE-INPI/PGF/AGU.

The patent application BR 11 2021 00893 1 4 on the agenda belongs to a patent family originating from the international application PCT/IB2019/057809 (published as WO 2020/079499), which was the first international PCT application published with the inventor’s name being an Artificial Intelligence system. This patent family has correspondent cases filed in Canada, the United Kingdom, Australia, and South Africa, where in the latter country, the correspondent case was granted (under number ZA2021/03242B). The name of the inventor indicated in said applications is described as “DABUS, THE INVENTION WAS AUTONOMOUSLY GENERATED BY AN ARTIFICIAL INTELLIGENCE” and the Applicant as Stephen L. Thaler. The acronym DABUS stands for Device for the Autonomous Bootstrapping of Unified Sentience. In addition, other related applications from the applicant Stephen L. Thaler have been filed naming the AI DABUS as an inventor in other countries, such as the United States, China, India, Israel, Japan, New Zealand, Germany, and Taiwan.

The AI system called DABUS is protected by US Patent US 10423875 B2 held by Stephen L. Thaler, which covers “the mechanics by which vast swarms of neural nets join to form chains that encode concepts gleaned from their environment. It also teaches the noise-stimulation of such neural chaining systems to generate derivative concepts from their accumulated experience (i.e., idea formation)”. This patent is the latest in the series of patents on generative neural networks extending over three decades, driven by Stephen L. Thaler.

The patent applications filed naming the AI DABUS system as an inventor belongs to an initiative called “The Artificial Inventor Project”, which includes a series of legal test cases that seek intellectual property rights for AI-generated outputs in the absence of a traditional human inventor or author. The Artificial Inventor Project aims to promote dialogue about the social, economic, and legal impact of frontier technologies such as AI and to generate stakeholder guidance on rights protection for AI-generated productions.

Regarding said opinion from the BPTO’s Federal Attorney, essentially, it elucidates some discussions about copyrights, such as the monkey Naruto’s selfie and the project “The Next Rembrandt”, recognizing that the Brazilian normative regulating the acquisition of Intellectual Property rights has ignored the possibility that non-human figures, or machines, are authors of artistic works or inventions. In this sense, Brazilian PTO states that the inventor must necessarily be a “human” person, as defined in Article 1 of the Brazilian Civil Code (“every person is capable of rights and duties in the civil order“).

Nevertheless, the Brazilian PTO recognizes that it is crucial to understand that eventual invention patents developed or generated by AI are a challenge to the current protection of the Industrial Property rights system and emphasizes the need to develop specific legislation that disciplines inventions conceived by AI, as well as international treaties to standardize premises in this sense in order to avoid discouragement in the segment in question upon ensuring the recognition of Industrial Property rights that are the output of agents other than the human person.

Finally, it is evident that the goal of The Artificial Inventor Project has been fulfilled, to the extent that arguments are being stimulated around the world, generating the perspective that there is understanding in an international spectrum, aiming for collaboration and homogeneous diligence on the subject.

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