Code & Conduit Podcast: It’s Not Easy Being a Blockchain Patent Attorney

Blockchain tech might be poised to revolutionize how companies like Bank of America operate and cryptocurrencies like Bitcoin trade. But inventors trying to patent their ideas in the field—and stake their claim on future profits—are facing hurdles at the U.S. Patent and Trademark Office (PTO).

“Though there’s been a surge of these patent applications, winning or scoring these patents on these technologies won’t be easy,” Bloomberg Law reporter Malathi Nayak said in a recent podcast episode of Code & Conduit.

Bloomberg Law data shows a wave of new applications have hit the patent office in recent months, but only a fraction have won patents.

The PTO received nearly 700 blockchain-related applications from 2011 to April 30 of this year. But just 70 patents—a tenth of those sought—were granted over that seven-year period, according to Bloomberg Law data. The figures may not include applications that have been granted but not yet published, or those that were denied, abandoned, or filed as confidential. 

Why the difficulty? A series of court decisions and PTO policies in recent years have made it impossible to patent software or financial services technologies that are deemed too abstract or obvious.  Blockchain tech software, with its early popularity in finance, is ripe for challenging at the patent office, Nayak said.

To navigate patent waters, attorneys are taking extra time to understand exactly how their clients’ inventions solve new technical problems, Nayak said. They’re also trying to avoid patent office examination units that are less likely to grant patents for software or financial services tech, she said.

The patent office might eventually issue guidance for writing blockchain patent applications, but right now it’s proceeding with caution in the new space, Nayak said.

“That is one of the hurdles,” she said.