Protecting your blockchain: IP rights in Italy
Blockchains are often implemented through open-source software, which by definition cannot be monopolised. Nonetheless, this does not mean that exclusive rights cannot be granted over blockchain technologies, including in the case of public blockchains.
Patents
Blockchain technologies, including both the blockchain underlying technologies and the blockchain applications, are considered by the European Patent Office (EPO) as “computer-implemented inventions” (CII). These can be patented if, besides meeting the usual requirements applicable to patents (mainly novelty, inventive step and industrial application), they are not abstract but have a technical character, i.e. they provide a technical solution to a technical problem. According to the EPO, this is generally the case when running software on a computer produces a further technical effect beyond the normal physical interactions between software and computer.
Examples of this “further technical effect” given by the EPO are the control of a technical process or of the internal functioning of the computer itself or its interfaces. This requirement appears relatively easy for blockchain technologies to meet, as they are generally technological in nature.
Copyrights
Original blockchain software, e.g. apps and smart contracts, including their code and graphical user interfaces, enjoy copyright protection under Italian law as soon as they are created, with no need to register them. Nevertheless, “registration” is possible, with the aim of ensuring evidence that the software was created by its author before the registration date. This goal is achievable by depositing them with the Italian collecting society or a public notary, but also through a combined use of electronic signatures and timestamps, or by means of various blockchain technologies.
Database rights
Blockchains are also likely to enjoy protection in Italy under the sui generis right granted to the maker of a database who made a substantial investment in obtaining, verifying or presenting its content. Also in this case, there is no need for registration, but this can be made to ensure evidence of its creation by its maker before the registration.
This protection appears useful for permissioned blockchains, but not so much for the permissionless ones, which by nature require the duplication of the database by several anonymous users.
Trade secrets
Blockchain technologies can also be protected as trade secrets under Italian law, insofar as they derive economic value from being secret and are subject to appropriate measures to ensure that they remain secret, both from a technical and from a legal viewpoint (e.g. NDAs, internal policies etc).
Trade secrets protection might even be preferred to patenting, since the latter implies disclosing the relevant invention and accepting that it will fall into the public domain after the expiry of the patent (20 years). Whilst this term of protection may be more than enough for blockchain technologies, given their fast development, holders of certain blockchain technologies might nevertheless be interested in avoiding patenting to keep them secret.