Draft guideline for software examination under consideration


Otto Licks and Carlos Aboim

The Brazilian Patent Office (INPI) has started a series of public consultations on patent examination procedures.

The first draft guideline is on software implemented inventions, and it will be open for comments from the public until May 14, 2012. INPI says that the goal of the consultation is to harmonise and publicise the examination procedures.

The draft guideline consolidates the current practice of the agency regarding software-implemented inventions. Nevertheless, it is important to invite the companies that are investing in R&D to contribute to the INPI’s consultation, since it is apparent that political parties in Brazil are seizing this opportunity to present a misleading view of the patentability criteria of computer-implemented inventions.

The Brazilian Patent Law excludes computer programs per se from patentability. The literal elements of the software, such as the source code, are protected by copyright in Brazil. Nevertheless, the statute does not exclude software-implemented inventions from patentability, and Art. 27 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement determines that patents must be available for all technical fields.

Software examination, INPI, Brazilian Patent Law, TRIPS, prior art, software