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IP Protection for Blockchain Technologies

Since its quiet introduction to an esoteric mailing list in 2008 by the pseudonymous Satoshi Nakamoto, blockchain technology – the underlying technology of cryptocurrencies like Bitcoin – has become a hot topic. At its core, a blockchain is a continuously updating list of encrypted records which is simultaneously stored and updated by a number of parties (e.g. computers) such that the records cannot be retroactively altered. Like all disruptive technologies, blockchain has implications for many aspects of the law, including intellectual property law. The repurposing of blockchain technology in different fields raises the question of whether or not blockchain-based technologies are patentable.

To be patentable in Canada, an invention must be:  (1) useful; (2) novel over the prior art; and (3) inventively different from the prior art. The usefulness requirement should not create a significant hurdle for blockchain-based technologies. The novelty requirement is satisfied if there has been no prior public disclosure of a system identical to the claimed invention in a single patent or other publication. Adaptations and improvements of the concepts disclosed by Nakamato may satisfy the novelty requirement but patent protection is no longer available for the bare concepts disclosed by Nakamoto due to the 2008 disclosure. The inventiveness requirement is satisfied if a person of skill in the art would not find it obvious to adapt or combine the prior art to yield the claimed invention. The inventive step requirement may provide a hurdle to those inventions which, for example, simply employ a blockchain ledger as described by Nakamoto in place of a previously-known type of ledger. Applicants will therefore need to demonstrate that their blockchain-based technology is more than merely a straightforward application of the Nakamato disclosure.

In addition to the above requirements, patent protection is only available for those technologies that comprise patentable subject-matter in compliance with section 2 of the Patent Act. According to the Canadian Intellectual Property Office’s Manual of Patent Office Practice, when it comes to computer-implemented inventions, a solution to a “computer problem” (i.e. a problem with the operation of a computer) is more likely to be patentable than a solution to a non-computer problem (i.e. a problem whose solution may be implemented using a computer). To secure patent protection, Applicants may therefore benefit from disclosing significant detail describing technical aspects of their blockchain-based technology, such as the logic performed by the computers and how the computers interact with one another. It may also be beneficial to describe how the specific implementation of the technology provides improvements over the prior art.

In addition to raising questions of its patentability, blockchain technology has garnered attention as providing possible solutions for intellectual property protection and intellectual property securitization. For example, a number of companies are currently exploring the concept of using blockchain for the registration of intellectual property ownership. Such proposed registries are not directed to the enforcement of intellectual property rights but instead are directed to facilitating tracing and transferring intellectual property ownership.

As blockchain-based technology, continues to rapidly grow, companies should consider filing patent applications to secure protection for their blockchain-based technologies as soon as possible and before there is any public disclosure thereof.

Information made available on this website in any form is for information purposes only. It is not, and should not be taken as legal advice. You should not rely on, or take or fail to take any action, based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Oyen Wiggs Green & Mutala LLP professionals will be pleased to discuss resolutions to specific legal concerns you may have.

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