TAKEAWAY: Patent applicants for blockchain-based inventions may see faster progress through the Patent Office by highlighting ways in which blockchain inventions improve computers “themselves” and/or a relevant technical field. It can also be fruitful to draft patent claims for blockchain inventions from multiple perspectives due to their inherently distributed nature.
In recent years, there has been increasing interest in patenting blockchain-based inventions. Blockchain has been defined as a distributed ledger network that records transactions in a transparent, verifiable manner, and forms the basis for digital currencies like Bitcoin. Despite their technological promise, blockchain patent applications often face heightened analysis for subject matter eligibility and, eventually, potential issues of divided infringement.
In the wake of the Supreme Court’s decision in Alice Corp. Pty. Ltd. v. CLS Bank International et al ., it has become more effective to characterize software inventions, including blockchain, as involving “significantly more” than “abstract ideas” implemented on a computer. It can be helpful to present arguments or evidence that a blockchain invention involves an improved data structure, akin to the self-referential spreadsheet of Enfish v. Microsoft, which held that such an “improvement to a computer itself” was patent-eligible. However, as blockchain becomes more ubiquitous, it may also be advisable to describe any improvements to the underlying steps of a blockchain invention, for example, in its encrypting function, or in how blocks are generated or mined. Even if blockchain technology and underlying applied technology are separately deemed well-known, alternative arguments exist. For example, in Bascom Global Internet Services vs. AT&T Mobility, online filtering was performed using filtering schemes and ISP servers that were both individually well-known in the art. However, the Federal Circuit held that “an inventive concept can be found in the non-conventional and non-generic arrangement of known, conventional pieces.”
Furthermore, patents on blockchain-based inventions may be somewhat more susceptible to divided infringement issues, especially since a blockchain is inherently distributed among its various participants. Therefore, it may be helpful to draft multiple independent claims to strategically cover various sources of infringement. For example, it may help to craft claims describing a method for accessing or contributing to a blockchain, as well as separate claims for encryption methods or contribution-verification methods performed by non-contributing participants of the blockchain. By drafting claims from the perspectives of the numerous participants and entities of a blockchain, including that of the system itself, a patent might better guard against design-arounds.