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After reviewing the First District court case on 35 U.S.C. 101 for a blockchain patent, we needed to examine in and see how the U.S. Patent and Trademark Workplace (PTO) has been dealing with blockchain-related patent purposes. Particularly, over the previous 12 months, the Patent Trial and Attraction Board (PTAB) has issued a number of choices on appeals of examiner rejections of blockchain patents beneath Part 101. Of those, the PTAB has not reversed any rejections made on Part 101 grounds: https://developer.uspto.gov/ptab-web/#/search/decisions (search “blockchain”). This, after all, doesn’t imply that no blockchain patents are being issued; it solely signifies that the choice to reject claims of specific patent purposes is left within the examiners’ palms. Nonetheless, this uniform affirmance of the rejections of blockchain purposes isn’t surprising given the up to date PTO Part 101 steerage printed in January of 2019 and the present inconsistent dealing with of Part 101 within the courts. See 2019 Revised Patent Topic Matter Eligibility Steering, 84 Fed. Reg. 50 (Jan. 7, 2019). Given the current uncertainty within the regulation, the PTAB seems to be leaving the choice to the examiners, who’re closest to the precise material of the purposes — and which can appear to be the most secure plan of action for the PTAB.
A latest choice that sheds some gentle on this constant affirmance of 101 rejections for blockchain purposes is Ex parte McCann, No. 2021-003397 (P.T.A.B. March 7, 2022). There, the PTAB reviewed declare 1 of the ’824 utility and located it directed to the summary thought of “sure strategies of organizing human exercise as exemplified by the business and authorized interplay of managing business cost transactions by advising one to course of funds with an obtainable cost instrument and put up the cost to a ledger, with out considerably extra.” Id. at 20. The PTAB defined why the claims have been ineligible, though the claims embody a recital of a blockchain and cryptographic information:
As to the recital of a block chain [sic], a block chain per se is generic and standard and is actually an accounting ledger. The claims don’t recite any technological implementation particulars. As an alternative the claims recite not more than the conceptual thought of utilizing a block chain for storage. Appellant [sic] don’t contend they invented block chain know-how.
Equally, the recital of cryptographic information is each generic and standard. Such recital does not more than invoke the conceptual thought of cryptography with out reciting any technological utility or implementation particulars.
Id. at 14-15. The PTAB went on to search out that the claims fail to offer an ingenious idea as a result of they don’t present considerably greater than the recited summary thought. Id. at 17-19. The PTAB discovered that when the claims are analyzed individually and as an ordered mixture, they’re “purely standard” and strange. Id. at 17-19.
This choice is informative for find out how to proceed earlier than the PTO. Particularly, one ought to be cautious of invoking blockchain know-how as a means of bettering present enterprise practices. In different phrases, claims that take an present monetary observe and “do it with a blockchain” are hard-pressed to go Part 101 scrutiny. As an alternative, claims have a greater likelihood in the event that they spotlight how their claims enhance the operation of the underlying blockchain know-how.
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