“By allowing [AI] systems to be recognized as patent inventors, we are incentivizing innovation and research in this field, at the same time as we guarantee a legal system that is effective in protection of intellectual property rights.” – Deputado Federal Júnior Mano

On February 20, 2024, a Brazilian congress member, Antônio Luiz Rodrigues Mano Júnior (known as Júnior Mano), introduced a bill to amend the national IP Statute (Law #9,279/96) and regulate the ownership of inventions generated by artificial intelligence systems. Bill #303/2024 proposes the addition of a paragraph to Article 6 of the IP Statute, which regulates ownership of inventions, with the following wording: “in the case of inventions autonomously generated by artificial intelligence system, the patent can be requested in the name of the artificial intelligence system that has created the invention, being the artificial intelligence system considered the inventor and owner of rights arising from the invention.”

In his written justification for the bill, Júnior Mano mentions the DABUS case, citing an article that compiles the decisions rendered in different jurisdictions for a patent application filed by Stephen Thaler for an invention created by his AI machine, DABUS. Júnior Mano observes that “although in some countries the applications were initially rejected based on the argument that the inventor needs to be a human person, in other places the debate continues, with arguments being presented in favor and against the possibility of AI being listed as an inventor.”

Against this background, Júnior Mano says the bill aims to update the Brazilian legislation to the reality of technological innovations, eliminating uncertainties that could harm development in this field. He states that “by allowing these systems to be recognized as patent inventors, we are incentivizing innovation and research in this field, at the same time as we guarantee a legal system that is effective in protection of intellectual property rights.” (Quotes were translated by the authors).

The Present Regime

Currently, in the absence of a statutory provision regulating AI-generated inventions, the Brazilian Patent and Trademark Office (BPTO) rejects the possibility of indicating an AI system as inventor in a patent application filed in Brazil. In 2022, the BPTO federal attorneys issued a legal opinion (Opinion #24/2022) observing, as a premise, that the rules regulating the acquisition of intellectual property rights “have historically ignored the possibility of non-human figures, or machines, being the authors of artistic works or inventions.” Article 6 of the Brazilian IP Statute includes language which, according to the federal attorneys, only allows for human beings to be named as inventors. They concluded that “at this moment, eventual utility patents developed or generated by artificial intelligence challenge the current system to protect industrial property rights.” As an afterthought, the federal attorneys affirmed that “specific legislation needs to be enacted regulating inventions developed by artificial intelligence machines, which will probably be preceded by international treaties aimed at harmonizing the principles of protection at the national levels.”

Closing the Gap

Bill #303/2024, if approved, would close this gap in the Brazilian legislation, although the wording proposed still leaves rooms for questions. The IP Statute will also require an amendment to clarify, for instance, who would be entitled to file an application for an AI-generated invention. The paragraph proposed in the bill says nothing about this. Its final part (“being the artificial intelligence system considered the inventor and owner of rights arising from the invention”) seems to indicate that the application could be filed in the name of the AI system. This is in line with Article 6, paragraph 2, of the current statute, which establishes that “the patent can be filed in the inventor’s name, by their heirs or successors, by the assignee, or by the person or entity to whom the law or the employment or service provider contract determines the ownership belongs.”

However, conflict may arise wherein the entity that invented the AI system is different from the entity (company or person) that used the AI system to generate the invention and is taking the measures to apply for a patent application. Amending the IP Statute to regulate these and other aspects related to AI-generated inventions would help to diminish the uncertainties even further.

Process

There will be plenty of opportunities for this to be done. Bill #303/2024 will soon be assigned to one of the House of Representatives Committees. The President of the House defines which committee(s) will discuss the bill based on its thematic relevance. Since Bill #303/2024 proposes an amendment to the IP Statute, it will likely be sent to the Industry, Commerce, and Services Committee. There, a House Representative will be designated as its rapporteur. The bill will probably also have to be sent to the Science, Technology, and Innovation Committee, where a rapporteur shall also be assigned.

A rapporteur is responsible for consulting experts and the public to write a report, which will then serve as basis for debate and voting by the other members of the committee(s). If the bill passes this stage, it will be sent to the Constitution and Justice Committee, where it is assessed whether the bill violates any provision of the Constitution. Afterward, if approved, the bill will be sent directly to the Senate. If any of the House Committees vote to reject the bill, it will be returned to the President, who will put the bill up to a vote in a plenary session.

AI in the Spotlight

There are currently more than 80 bills which address AI-related aspects being processed in the Brazilian Congress. Several of them aim to criminalize using AI for fraudulent and/or violent purposes. Others seek to regulate the use of AI. With respect to  intellectual property rights, Bill #1473/2023, currently waiting for a report from its rapporteur in the Commission of Culture, makes it mandatory for companies operating artificial intelligence systems to make available tools that allow content creators to restrict the use of their materials by AI, thus preserving their copyrights.

Another bill introduced in 2023, this one by the President of the Senate, aims to provide general rules “for the development, implementation, and responsible use of artificial intelligence systems in Brazil” (Bill #2338/2023). Article 42 of the bill states that “it doesn’t constitute a violation of copyrights the automated utilization of works, such as the extraction, reproduction, storage and transformation, in data and text mining processes in artificial intelligence systems,” when done by research institutions, news organizations, museums, libraries, and archives.

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