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Journal of Intellectual Property Law

Abstract

When blockchain technology was first introduced via the now-infamous Bitcoin in 2008, it was almost immediately recognized by the tech industry as being even more valuable (and certainly less volatile) than the cryptocurrency it embodied. The publicly distributed ledger known as the blockchain has created a frenzy that is continuing to grow as industries explore future adaptations of the technology. Following this explosion of cross-industry innovation, intellectual property issues naturally follow as early adaptors seek to capture the value of pioneering new blockchain technology. The rising popularity of the blockchain has created an intellectual property gold-rush as firms hoping to capitalize on new adaptations race to the patent office to have their "substantial improvements" recorded. This note provides necessary background material regarding intellectual property, particularly patent and copyright law, its underlying policy and implementations, and application to the blockchain. It also seeks to provide a solution to the problem of patent trolling and general uncertainty regarding ownership of the newly minted blockchain technology.

Part II provides a comparison of patent and copyright law and examines possible market effects. Part II also discusses patent policy and the underlying economic incentive theory which prompted the Framers of the U.S. Constitution to provide the basis for ownership in intellectual property. Finally, Part II introduces the controversial problem of "patent trolling," wherein the trolling company purchases patents for the sole purpose of exacting licensing fees or enforcement damages from other entities. Part III begins with an analysis of the current state of the blockchain patent landscape. Part III then considers three potential sources for a solution to blockchain's current "patent problem": an industry-led defensive alliance; potential legislative fixes; and ultimately, the inevitable weigh-in by the courts, along with Alice implications on currently existing patents, none of which have spawned substantive enforcement or patent-challenge litigation (yet).

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