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regulations pto materials back pto materials mpep manual of patent examining procedure tmep trademark manual of examining procedure december 2014 guidance on section 101 case law back case law patent cases copyright cases internet cases treaties back treaties paris convention treaty patent cooperation treaty pct patent materials back patent materials patent statute america invents act patent regulations mpep manual of patent examining procedure pto examples pto guidance on ai assisted inventions patent cases paris convention treaty patent cooperation treaty pct trademark materials back trademark materials trademark statute trademark regulations tmep trademark manual of examining procedure paris convention treaty copyright materials back copyright materials copyright statute copyright regulations copyright cases bitlaw bitlaw guidance guidance index patent section 101 guidance patent filing guidance trademark guidance patents patent index section 101 section 101 index case law pto s mpep approach pto examples source materials index patent statute america invents act patent regulations mpep patent exam procedure pto guidance on ai assisted inventions pto examples patent cases paris convention treaty patent cooperation treaty pct obtaining a patent requirements patent searching provisional applications utility applications patent prosecution patent issuance patent rights design patents international patents software patents software patent index why patent computer software software is patentable software patents after bilski history of software patents bad software patents trademark index source materials trademark statute trademark regulations tmep tm exam procedure paris convention treaty trademark devices strength of trademarks searching common law rights federal registration infringement dilution on the internet copyright index source materials copyright statute copyright regulations copyright cases obtaining copyrights unprotected works scope of protection fair use notice registration duration ownership sale and licensing database protection mask works ai ai and the law index patents and ai patenting ai section 101 eligibility ai invented inventions copyright protection for ai generated works introduction to ai training of chatgpt ai hallucinations ai patents ai lawsuits us ip office documents pto guidance on ai assisted inventions pto example 39 copyright ai report 1 digital replicas copyright ai report 2 copyrightability blockchains blockchains and the law index intro to blockchains blockchain patents smart contracts daos nfts blockchain lawsuits medical devices medical device index patent primer patent considerations patenting decision patent strategy medical device patent attorney blockchain patents the united states patent office is currently granting over five thousand patents per year on blockchain related technologies it is clear that these types of inventions are eligible for patent protection and will continue to be patented in large numbers this page s discussion of blockchain patents is divided into the following topics blockchain inventions can be patented subject matter eligibility divided infringement reactions to patents on the blockchain legal assistance you may also wish to look at these related pages in bitlaw introduction to blockchains decentralized autonomous organizations daos non fungible tokens nfts blockchain lawsuits blockchain inventions can be patented in many ways patents on blockchain inventions are similar to patents on other types of software and computer related inventions this means that improvements in this space must be both novel and non obvious before a patent can be granted as is explained in more detail in bitlaw s discussion on patent requirements the novelty requirement states that a patent will not be granted on an invention if it has been publicly used or disclosed anywhere in the world before the patent application was filed if the use or disclosure was made by the inventor of the patent application the application must be filed within one year of that disclosure this one year period is known as the statutory bar under the non obviousness requirement it is not enough that an invention is simply different than what has gone before what has gone before is sometimes referred to as the prior art an invention has to be more than just novel to be patentable it has to be a non obvious improvement over the prior art if an invention is nearly identical to a previous technology or is different from the prior art only in obvious ways than the invention is not patentable under this non obviousness requirement an example of a non patentable non obvious improvement might be taking a known technique for minting tokens on an existing blockchain and moving this technique to a different blockchain if the technique has never been used before on this new blockchain it may be new or novel but if the technique can be used on the new blockchain without making any significant changes to how it is implemented using this known technique on the new blockchain to perform the same minting process would be considered obvious if however the context of the new blockchain imposes significant roadblocks to minting tokens in this fashion and changes to the technique had to be developed to overcome these roadblocks the implementation on the new blockchain might well be non obvious subject matter eligibility furthermore a blockchain invention must be eligible for patent protection under section 101 of the patent act as interpreted by the courts after the supreme court s alice corporation decision from 2014 whether or not blockchain software is eligible for patent protection is unfortunately a complicated issue while the statutory basis for this subject matter eligibility requirement is section 101 of the patent act the actual statute does not describe this issue at all rather courts have created this law and the test for patent eligibility which makes interpreting this issue much more difficult the bitlaw website contains a great deal of information on this topic which can be found through the section 101 index the subject matter eligibility requirement means that many or even most patentable blockchain inventions will relate to how the blockchain functions and how external systems including other blockchains interact with the data on the blockchain for example microsoft s us patent no 10 938 548 relates to a blockchain event interface system that covers the communication of events on one blockchain with objects such as smart contracts residing on another blockchain similarly square network owns us 10 108 938 which covers the interaction between an off the blockchain payment system such as square s own payment system and cryptocurrencies controlled by a purchaser on the blockchain the issue of subject matter eligibility is an important one when drafting a new patent application on a blockchain related invention if the invention relates to data gathering data analysis and the display of results it will be difficult overcome a section 101 rejection simply by claiming that the data is stored on the blockchain the patent trial and appeal board the ptab has considered the subject matter eligibility of multiple blockchain patent applications and has regularly found that the inclusion of blockchains in the claim for storing data does not alter the abstract nature of inventions that handle financial transactions or otherwise collect store and analyze data for example in a 2021 decision ex parte vijay madisetti and arshdeep bahga appeal 2021 000148 the ptab considered an invention relating to a lending pool smart contract that ran on a blockchain network this pool contract was assigned a plurality of lender smart contracts and a single borrower smart contract the claim required account reconciliation after the ending of one of the lending smart contracts although the claim clearly was limited to a plurality of smart contracts found on a blockchain network the ptab found that claim ineligible under section 101 as being directed to the idea of accounting reconciliation all blockchain specific elements in the claim were considered by the ptab to be well understood routine and conventional similar analyses and results are found in other decisions of the ptab a study of these decisions leads to the conclusion that blockchain patent applications should be drafted and claimed in a manner similar to software patent applications technological improvements must be emphasized and any resulting improvements to business processes should be presented as a consequence of the technical advancement divided infringement in addition it is important to consider the issue of divided infringement when drafting blockchain related patent applications every patent application is written to include one or more patent claims which determine the scope of the patent if and when that application issues as an enforceable patent in order for any party to infringe the issued patent there must be a single party that performs every element of the claim or some device must be produced that includes every element of the claim if some part of the claim is performed by one party and another part of the claim is performed by another party this is a case of divided infringement and it is possible that the patent is not legally infringed see the court s analysis in akamai technologies inc v limelight networks inc for the best explanation of how this doctrine is currently being applied in the united states because it is generally best to avoid cases of divided infringement it is important to draft a blockchain related patent application so that each element in a system claim or each step in a method is created sold or performed by a single actor as many commentators have noted this can be trickier in the blockchain environment because of the distributed nature of the blockchain and the multiple actors that are involved in simply placing data onto the blockchain for example blockchain miners that mine new blocks may act independently from the node computers that contain the blockchain and are they also likely to be acting independent from the participants that submit new data to the blockchain thus if the invention relates to interactions with a blockchain as is the case with the microsoft and square network examples above it might be wise to focus the claim on the activities of the computer system operating outside of and interacting with the blockchain as opposed to claiming the steps of actually saving data on the blockchain reactions to patents on the blockchain on august 18 2021 u s patent no 11 113 676 issued to circle line international limited this patent covered a technology known as asicboost which increases the efficiency of bitcoin mining operations by up to 30 percent because of this improvement in efficiency and because of aggressive marking of the patent pending status of this application in 2017 in an open letter by a patent attorney alleging widespread infringement many in the industry worried that a patent monopoly on this technology would disrupt the bitcoin system the bitcoin blockchain grows through mining and consensus which generally makes it impractical for a small number of miners to disrupt the blockchain by creating a counterfeit blocks in the chain but according to those concerned if a small number of miners were given patent exclusivity on a technology that greatly improved their efficiency perhaps those miners could out compute others and effectively re write the blockchain to suit their own purposes in response to the early publicity about this technology numerous hardware developers of bitcoin mining devices entered into a defensive patent license consortium that created the blockchain defensive patent license all members of the consortium agreed to license their bitcoin mining related patents to each other while reports differ it appears that the current owners of the asicboost patent in the united states europe and south korea are not part of this license scheme in late 2020 circle line did in fact sue samsung one of the largest asic manufacturers for bitcoin mining devices for patent infringement of the asicboost technology in korea blockchain patent attorney please consider dan tysver s bio and contact information if you need any legal assistance in obtaining a patent on a blockchain related invention dan is a minnesota based patent attorney helping clients from across the country obtain patents on their blockchain innovations you have great ideas when you need to protect them call us 1996 2026 daniel a tysver all rights reserved forsgren fisher mccalmont demarea tysver llp minneapolis mn no claim to copyright ownership is made to underlying materials originating with the u s government including mpep and tmep sections and indexes statutes regulations and court decisions important please review the legal disclaimer and feedback page 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