Article 10 of Section 5 of the Brazilian Industrial Property Law indicates that “computer programs per se” are not considered inventions or utility models. The interpretation of this article often leads to doubts when filing patent applications for inventions that are implemented by computer program.
To solve this problem, the BPTO published new guidelines to assist in the technical examination of those patent applications involving computer programs.
The new guidelines highlight that a process or product implemented by computer can be considered an invention when it solves a known problem by means of a technical effect, which is not related to the way the program is written.
The resolution also defines the existence of three process classes for inventions implemented by a computer program:
1) a process that uses physical quantity to generate a physical product or effect;
2) a process that uses physical quantity to generate a virtual product; and
3) a process that uses abstract quantity to generate a virtual product.
With these guidelines, the BPTO expects an increase in the number of filings for patent applications implemented by computer programs, as well as a more consistent analysis on such applications. Although it is a new guideline, it relates to the examiners’ practices from over the last five years in Brazil.
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