The original blockchain developers set the core programs, development interfaces, and application software of the blockchain as open source software, which are open to all developers for free. They have never thought of collecting royalties by claiming copyright, nor did they apply for patents. Since then, however, many follow-up blockchain developers applied the core programs to further developments and filed a large numbers of patent applications, causing the original blockchain developers to be very concerned about whether these patents will otherwise slow down or even endanger the innovation of blockchain technology. Consequently, finding legal solutions for the conflicts between open source software and patent rights hence becomes an important research topic in the field of intellectual property rights.
This article discusses three possible solutions to the conflict: the licensing schemes of industrial standard, the licensing schemes of open source software, and the open patent campaigns, pointing out that at the moment all three have an opportunity to solve the problem, while also acknowledging that there are still many issues to be solved. In terms of the licensing schemes of industrial standard, this article considers that the industrial standard of blockchain should require the patentees involved in standard setting to disclose their patents, and should require the owners of the standard essential patents to not refuse the patent licensing. To determine what licensing scheme the blockchain standard should adopt, this article conducts a legal and economic analysis by studying its technical attributes, the process of patent thicketing, and the development of the industry, suggesting that the “Patent Policy” of the blockchain standard should at least follow the fair, reasonable, and non-discriminatory (FRAND) license adopted by many industrial standards such as the telecommunication industry. As a result, users of blockchain could access the patented technologies more conveniently. In terms of the licensing schemes of open source software, this article finds that the MIT license for the Bitcoin Blockchain and the GNU GPL license for the Ethereum Blockchain cannot solve the problem of follow-up developers not drafting a software code, but instead applying for patents for the resulting follow-up developments. This article compares the similarities and differences of other open source software programs, studies the original philosophical spirit and technological and industrial development of blockchains, and suggests a suitable licensing scheme of open source software for the blockchain technology.
Lastly, this article finds open patents to be a possible solution to the patent problems faced by the blockchain technology, but concludes that this solution is more challenging with blockchain than in other industries because open patent campaigns rely on the spontaneous action of the patentee. The blockchain industry, especially the original developers of the core blockchain technology, should provide incentives for the right holders of subsequent patent applications to willingly and spontaneously open their patents.
Huang-Chih Sung, When Open Source Software Encounters Patents: Blockchain as an Example to Explore the Dilemma and Solutions, 18 J. Marshall Rev. Intell. Prop. L. 55 (2018)