What is "blockchain technology"?
Protecting blockchain innovations
Where can "blockchain patent publications" be found?
Examination of blockchain patent applications
Comment


The number of inventions involving blockchain is increasing. This article outlines how to protect blockchain innovations in the European Union.

What is "blockchain technology"?

To understand what blockchain is, it is important to consider the inception of bitcoin. While the two terms are no longer synonymous, bitcoin was the first crypto asset ever invented and constitutes the birth of the concept of blockchain.

A bitcoin blockchain is works as follows:

  • person A wishes to send person B some bitcoin;
  • the transaction is represented online as a block;
  • the block is broadcast to every node in the network with a complex mathematical problem to crack;
  • miners race to work out the answer to the mathematical problem (a cryptographic puzzle);
  • the first party (miner) to crack the problem broadcasts the answer to the network that validates the transaction;
  • the valid transaction is added to the chain and broadcasted to all nodes; and
  • the bitcoin moves to person B.

Because of the mechanics of blockchain technology, it is an innovative, digital record-keeping transaction and secure computation system.

Blockchain adds a new fundamental layer to the Internet's infrastructure and provides an open, global, immutable, decentralised, transparent and incorruptible functionality. The blockchain infrastructure is about value exchange, governance and trust. The next generation of the web will be decentralised and built especially on this foundation of trust, value exchange and security.

Protecting blockchain innovations

The European Patent Office (EPO) carried out its first conference on blockchain in 2018. The EPO had expressed its desire to be organised in order to ensure that patent-granting authorities grant blockchain patents that are legally robust in a predictable manner.

The EPO has frequently emphasised that blockchain inventions are computer-implemented inventions (CIIs). The EPO has developed stable criteria in this regard on the basis of CII case law.

"Blockchain patent applications" refers to a group of patent applications that are related to blockchain technology in general. This general group can be divided into two sub-groups:

  • patent applications that are related to the underlying technologies of blockchain (eg, public key decryption, access control and block construction); and
  • patent applications that are related to the applications (uses) of blockchain (eg, drug tagging, audit registration and food tagging).

The growth of blockchain patent applications started in 2016 and their number continues to increase.

Where can "blockchain patent publications" be found?

Entering the term "blockchain" in a classification search in Espacenet results in many classes where aspects of blockchain technology are classified (see Figure 1).

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Figure 1: classification search in Espacenet

The core area of blockchain is in classification H04L 9/00, which is described as "cryptographic mechanisms or cryptographic". However, blockchain technologies are also classified in a number of other classes, including payment architectures (G06Q 20/00) and business processing (G06Q 2220/00).

The fact that blockchain patent applications may be classified under very different classification codes must be taken into account when searching for blockchain patent publications.

Examination of blockchain patent applications

Blockchain inventions are CIIs since:

  • there are many computers involved;
  • there is a network involved; and
  • they include features implemented by software programs (eg, solving the cryptographic puzzle and adding a block to the blockchain).

The crucial features of blockchain include networking, computing, security and data structures. These features are technical and thus they are potential inventions. However, other features of blockchain (eg, mathematics or certain business methods), appear to be more abstract, and abstract subject matter is excluded from patentability in most jurisdictions. Therefore, it is important to understand on which aspect of blockchain the innovation is performed.

As blockchain inventions are treated as CII inventions, how to examine them is well known. The EPO has indicated that blockchain inventions should be examined in a predictable manner, based on the case law of the Board of Appeal and summarised in the Guidelines for Examination.

The legal practice at the EPO utilises the two-hurdle approach.

First hurdle: eligibility
The first hurdle is the "eligibility test": is the claimed subject matter excluded from patentability under article 52 of the European Patent Convention? In practice, the first test evaluates whether the invention involves anything technical, or whether it is purely abstract. This first hurdle can easily be overcome by including in the claims that the invention is a computer or a computer-implemented method, which has always provided the required technicality.

Second hurdle: novelty and inventive step
The second hurdle is a test of the invention's novelty, and whether it involves an inventive step, as explained in the Guidelines for Examination (G-VII, 5.4). CII inventions, including blockchain inventions, often have a mix of technical and non-technical features. The examiner must first divide the claim into features that have a technical character and features that do not. The examiner must be careful here, because features that, at first sight, might appear to be non-technical in nature (eg, a mathematical step), may well bring a technical effect in the context of the invention, and thus have a technical character.

The examiner subsequently searches for the closest prior art. Once the prior art is known, it can be verified whether the features with a technical character that are different from the closest prior art have a technical effect. The features that do not have a technical character are not taken into account in this evaluation. This is the well-known "Comvik" approach.

Comment

It is important to protect blockchain innovations. Filing patent applications plays a crucial role in a blockchain protection strategy, and patents can be used to protect not only core blockchain technology inventions, but also inventions on the application (use) of blockchain technology. Protecting blockchain innovations both attracts investors and creates value for a company.

For further information on this topic please contact Frank Van Coppenolle at GEVERS by telephone (+32 2 715 3711) or email ([email protected]). The GEVERS website can be accessed at www.gevers.eu.