What can and cannot be patented
An NFT is a record on a blockchain, and a token as such is generally not something a patent protects. A new technical method or system, such as a specific way of verifying ownership or linking tokens to physical goods, may be patentable if it is a genuine technical advance rather than an abstract idea carried out on a computer. Software and blockchain claims face particular scrutiny under the framework the Supreme Court set out for abstract ideas, so applications should focus on concrete technical improvements. Disclosing the invention publicly before filing, including in a white paper or a public code repository, can limit patent rights, especially outside the United States.
Tokens, art, and brands
Buying an NFT usually transfers the token, not the copyright in the linked artwork, unless a license or assignment says otherwise. Many projects grant holders limited licenses, and the terms vary widely from one project to the next. Brand owners have filed trademark applications covering virtual goods and NFTs, and disputes have arisen over unauthorized NFTs that use well-known marks. If a project promised holders commercial rights, the exact license text controls what they may do with the art. Collect the smart contract terms, the project license, the white paper, and any public disclosures with their dates.
Planning a filing
A patent application for blockchain technology should describe the technical problem and explain in detail how the invention solves it. A provisional application can establish an early filing date while development continues, but it must be followed by a full application within a fixed period, and it supports only what it actually describes. Anyone who prosecutes the application on the inventors' behalf must be a patent attorney or agent registered with the USPTO. We start by understanding the technology, what has already been disclosed, and the business goals, then assess which of patent, trademark, copyright, or trade secret protection fits the project.
