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03.04.18

Blockchain Patent Hype Has Been So Extraordinary That There’s Now a Blockchain Defensive Patent License (BDPL)

Posted in Patents at 2:18 pm by Dr. Roy Schestowitz

Related: Blockchain Becomes the Target Not Only of Financial Institutions With Software Patents But Also Trolls

A hype loop
Another hype loop

Summary: Blockchain patents, which are just software patents (and thus likely invalid under Alice and EPC), continue to be granted and law firms are totally embracing this hype to encourage more of the same (granting of dubious software patents)

THE EPO grants software patents provided they’re clouded by buzzwords, novelty-sounding hype, and words like “device” or terms like “technical effect”. The USPTO has become stricter than before (more on that later today and tomorrow), so buzzwords or media hype get exploited (“AI” has been a popular one lately).

A few days ago someone explained why Europe does not yet grapple much with blockchain patents (at least the appeal boards do not): “Of course, due to the delay of the publication of patent applications by 18 months, today’s statistics reflect the situation of late August 2016, when the blockchain hype was in its early stages…”

He too uses the word “hype”.

“…buzzwords or media hype get exploited (“AI” has been a popular one lately).”They know what it is. To be clear, blockchains are a real thing and not merely a buzzword like “cloud” or “AI”; blockchains have different implementations and uses. They’re just very hot (maybe too hot) in the media these days. Last week there was this article titled “The blockchain market is hot; here’s how to learn the skills for it” and another one titled “Blockchain: Not just for cryptocurrency” (the above person already suggestion it can be used for patent management).

“AI”, “Blockchain” and all that malarkey which makes old staff sound novel and cutting-edge (sickening retreat to buzz and hype) is a subject we wrote about many times before. We hope that examiners at least know what’s going on because perhaps more often than not when confronted with such terms inside applications the intent is to mislead and confuse (to make things sound more complicated than they really are, making examiners feel misinformed/foolish). See this new article titled “What IP Attys Need To Know About Blockchain” because it articulates what we have been saying for a long time. These people are just looking to exploit hype to patent software (the EPO creates hype around “fourth industrial revolution” and “Industry 4.0″ for this purpose).

Always remember that blockchain is software (typically Free/libre Open Source software), so patents don’t really belong in this domain, albeit many still get granted (in the US at least).

“”AI”, “Blockchain” and all that malarkey which makes old staff sound novel and cutting-edge (sickening retreat to buzz and hype) is a subject we wrote about many times before.”Herein we see Paul Haughey, Brian Olion and Thomas Franklin hyping up mass patenting of different aspects of blockchain (just because “blockchain!”) and others in the ‘industry’ they call ‘IP’ suggesting the same for copyrights (“Managing Copyrights on a Blockchain: How Close Are We and What Does It Mean?”).

It’s like a fashion. We’re supposed to think that blockchain is so revolutionary and any patent applications pertaining to blockchain should thus be granted for their novelty unless proven otherwise (there’s no prior art with this particular word, “blockchain”, but many of the concepts are just old things with the term or concept of “blockchain” added to them, much like “on the Internet” or “on a computer/phone/car”).

Here’s Managing IP where Ellie Mertens published “How blockchain will change intellectual property – trade marks and brands” several days ago. This isn’t about applications but about use of blockchains for organising data:

Managing IP is publishing a series of articles that looks at how blockchain technology is changing each area of IP. Here, in the first article, Ellie Mertens analyses its implications for trade marks including improving supply chains, being an alternative source of registration and helping IP offices become more efficient

“Blockchain For Patents – Patents For Blockchain” is another article — this one touching both aspects (managing patents using blockchains and patenting concepts associated with blockchains).

Much has been written and discussed about how blockchain technology would bring about fundamental changes to the financial industry which could actually threaten the very existence of banks as intermediary trust centers. At the latest after the major central banks met about a year ago in Washington at a three-day event, hosted by the World Bank, the International Monetary Fund and the US Federal Reserve, to discuss blockchain and crypto currencies, it probably dawned on a wider public that the hype around blockchain must be more than just that.

In a recent in-depth analysis report, the European Parliamentary Research Service investigated how blockchain technology could change our lives. Indeed, blockchain has potential for application way beyond Fintech – so the current hype may actually be understated.

[...]

The application of blockchain is and will not be limited to the financial and legal sectors. With the advent of Internet of Things and cloud-based data processing and their propagation to virtually all kinds of technologies and industries comes a need for logging and registering events and values with critical requirements of reliability, security, and verifiability, qualities which are inherent to blockchain. The application of blockchain in technical fields will spur innovation and with it patent applications. The current numbers of published patent applications related to blockchain are still low, worldwide in the range of about two hundred patent families, primarily from the financial sector. Although there is a blind spot of a year and a half, because patent applications are published as late as eighteen months after their filing, it is evident that the numbers are growing rapidly. In just the last three months, the number of published US patent applications increased from 123 to 225. Worldwide, this rapid growth is indicated by an increase of patent families from 175 to 250, with published patent applications growing from 284 to 425 in the same short period. This tremendous activity is further evidenced by the appearance of new applicants, with top ranking numbers of applications, and a broadening of relevant fields from finances to information and communications technology.

Here’s a new article about the blockchain patent gold rush in China:

Several top-tier public universities in China are stepping up efforts to patent blockchain applications developed on campus.

New data published on Feb. 16 and Feb. 23 by China State Intellectual Property Office (SIPO) highlights the efforts by institutions such as Zhejiang University, Shenzhen University and Chinese Academy of Sciences to obtain patents related to the tech. The efforts are a tangible sign of the growing interest – and investment of resources – from China’s government-funded academic institutions in the area of blockchain research and development.

Last but not least, Aaron Van Wirdum and Andrew Nelson wrote about the Defensive Patent License (DPL) in relation to bitcoin patents (naturally, this relates to blockchain):

Bitcoin is considered by many to be the culmination of the decades-old cypherpunk movement, rallied around predominantly anarchist and libertarian ideals regarding freedom of information. The original Bitcoin software, therefore, was released as free and open-source software (FOSS), and operates today under the MIT License known for its permissive nature. Many would agree that its open, permissionless ethos has helped make Bitcoin the success it is today.

Much of this ethos is in stark contrast with international patent law. Where FOSS is fundamentally about free distribution, patents grant individuals or companies exclusive property rights or ownership of an invention. Through the Patent Cooperation Treaty (PCT), the patent holder holds those same rights over a patented invention in up to 152 countries (with non-signatories to the treaty being countries with low global economic standing or those with a history of systemic intellectual piracy).

[...]

There have been several attempts to resolve the problems that patents pose to the Bitcoin industry. Coinbase, for example, signed a patent pledge. Although not legally binding, this pledge indicates that the company publicly renounces the aggressive use of software patents on startups.

Blockstream went a step further; besides committing to a patent pledge, it also became part of the Defensive Patent License (DPL). By signing the DPL, the blockchain development company promised to share all its patents with other license holders, on condition that those companies share their patents as well.

However, none of these measures are specifically designed for Bitcoin or blockchain technology. Importantly, these agreements have loopholes that could be abused, as a new initiative contends. This new initiative, the Blockchain Defensive Patent License (BDPL), represents an updated version of the DPL.

So they now have something which they call Blockchain Defensive Patent License (BDPL).

“…the only cause for excitement here seems to involve lawyers who found a new buzzword/hype to justify software patents.”We don’t really know how much longer this ‘fashion’ will last, but blockchains aren’t that exciting and the only cause for excitement here seems to involve lawyers who found a new buzzword/hype to justify software patents. They sometimes even brag about it. Alice laughs back at them.

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