No one can ‘patent the blockchain’: Cerian Jones dispels myths on software patents

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When is blockchain the right fit for a company? And can you patent the blockchain?

CoinGeek reached out to a European patent attorney. Here’s what she has to say about blockchain technology and blockchain patents.

When is blockchain the right fit for a business?

It’s really case dependent, it’s going to be driven by the commercial and technical goals within a given situation. But anytime you want a permanent non-editable record that is timestamped, verifiable and secure, for example if you need an immutable audit trail and provenance record, blockchain is the perfect fit for that. But ultimately, it’s going to come down to the specific technical and commercial needs of a particular situation.

What is a day-in-the-life of a patent attorney like?

Much of my work consists of drafting patent applications as well as their prosecution. Prosecution is when you have a patent application pending at a patent office in a particular country and you correspond with examiners at that patent office to (hopefully) establish that the invention is patentable and that a patent should be granted.

Patent attorneys handle other types of patent-related work as well, though, such as providing advice and opinions relating to patent infringement or freedom to operate, litigation, or IP strategy for leveraging an organization’s innovation to gain commercial advantage, and so on. Different attorneys tend to focus on different aspects of the job according to their preference and skill set.

Is there a right or wrong time for an individual to go down the patent route?

A patent application is a commercial tool. So whether or not to pursue patent protection is a commercial decision that an innovator needs to make on the basis of their goals and their individual circumstances. It’s not always the right option for every innovator or organization, or every invention.

In some situations, perhaps relying on trade secrets is more appropriate for some reason if you’re sure you can keep your invention under wraps and don’t want it published by a patent office. Or sometimes there might be financial, commercial or other constraints that don’t make patenting a viable or preferred option. It’s important to get sound, objective professional advice to help you make that decision.

But if you do decide to go down the patent route, you need to get your patent application filed and pending with the patent office before you disclose your idea to the world. If you tell someone about it (your idea) and that conversation isn’t in confidence (such as being covered by a non-disclosure agreement) then you may well have jeopardized your ability to get a patent for that innovative concept.

However, while you want to get your patent application in as soon as possible to prevent disclosure issues, ideally you also need to do it at a time when you’ve thought through the concept properly. If you do it too soon, while your concept is still quite sketchy, or while you’re still working through early stage details and haven’t figured out how the invention could be put into practice, then you might find that the application that you file at the patent office doesn’t actually look like the technology you end up running with commercially, or your application doesn’t contain enough technical detail to satisfy the patent office’s legal requirements. Your patent attorney will be able to guide you on such matters.

What if the technology you would like to use has already been patented?

Then you either have to design around the wording of the granted patent’s claims and come up with a version of the tech that does not fall within the scope of the claims or, if you cannot do that, then you need to approach the patentee and come up with some sort of mutually agreeable arrangement such as obtaining a license to use the technology.

What are some of the highlights or general takeaways from the Blockchain and Patents webinar you recently gave in conjunction with Two Hop Ventures?

One of the main things that we were trying to do was dispel some of the myths that are out there about software patents in general but also about blockchain related patents in particular. There have been comments and content online and in social media that are misguided or inaccurate, so we thought it would be helpful to discuss the topic.

For example, no one can “patent the blockchain”—it’s out there, it’s been out there for a long time, so nobody is going to be doing that.  What you can try to protect, though, is technology that can be used in conjunction with the blockchain and builds in some way upon what’s already known—as long as that development is technical in nature and has a feature that is new and not an obvious modification of what has been done before. But that’s not just true in relation to blockchain and crypto related technologies. That’s true in respect of patents for all types of inventions.

We were also looking to give some guidance for people who were perhaps sitting on a piece of technology that they were considering protecting; some pointers or assistance in terms of the sort of issues they should be aware of in regard to their technology if they are considering going down the patent route. For example, the disclosure issues that we just talked about—not telling the world about your technology before you put your patent application on file, or when a software invention might be considered non-patentable as a business method and so on.

What do you think the future of blockchain technology or blockchain patents will be?

That’s a tough question! So hard to make predictions about where this will go. Perhaps, though, we’ll see more attention over time on blockchain as a powerful, new computing mechanism for all sorts of technical implementations and applications as more and more people start to realize the difference between blockchain and cryptocurrency, and learn about the underlying technology rather than attention being distracted by currency-related uses and aspects.

Perhaps technologies such as tokenization solutions, supply chains, identity-related systems, banking and transactional solutions, mining technologies, wallets etc. will become yet more prominent than they already are? But it’s still quite early days, really. After all, it was only 2008 when Satoshi kicked this revolution off; and this incredible technology has such disruptive potential that trying to make predictions now, when things are still moving and changing so rapidly, feels like asking someone back in 1990 to predict the future in respect of the Internet.

Editor’s note: The contents of this article are the personal views of Cerian Jones and not made on behalf of any other party or client.