Can blockchain technology be patented and, if so, to what extent?
On the American website on copyright protection, there are 25 projects related to blockchain technology. On the website of the British patent office, there are 55 projects under that name, while on the European one there are 39.
While some companies like Chain have decided to keep their code open source and available to everyone, others may want to protect their technology.
What are the limits of a possible legal protection of the blockchain?
We will look at the USA, where it is also necessary to protect any production from Europe. The requirements for a technology to be patentable are:
The patent application cannot cover natural phenomena, natural laws, or abstract ideas, but their applicable elaborations;
There has to be an inventive element, of novelty and of non-obviousness.
It is not possible to patent the law of gravity, just as it is not possible to patent, even if it was attempted, the abstract idea of the automobile. Elements of specificity and novelty are necessary to obtain legal protection.
Satoshi Nakamoto’s original paper on the creation of the blockchain, the one published in 2008 as the basis of a payment system, was not subject to any patent, so mere reproductions of the blockchain would lack the element of novelty that is necessary to obtain patentability.
At this time a generic technology for a peer to peer network would be considered abstract, as a purely mathematical formula and would fail the Mayo test, according to US law, aimed at assessing whether the discovery is innovative or not.
If instead, we talk about applications of the algorithm of specific productive or economic activities, that is to say, production processes of goods or services, and this type of application has not yet been registered, then the specific application will be able to obtain protection from the law.
Obviously, the new blockchain application will have to prove that it is innovative and that there is no trace of similar patent applications.
This is the path that, for example, Goldman Sachs followed to secure their patent, demonstrating an innovative application in the field of payment security, so the generic DLT is not patentable, but its implementations are.