區塊鏈技術與智慧財產制度衝突與化解

近年實務界、學界多有討論區塊鏈的各項應用以及管制層面的議題，且區塊鏈儼然成為新聞、媒體的熱門報導，並且多半著眼於其改變世界的可能性。但囿於法學界之文獻，較多著重於金融領域之運用以及金融監管部分之探討，而對於智慧財產面向的討論則較為有限。而雖然國際上已准許之區塊鏈相關專利數量尚且不多，唯獨，透過觀察已申請未准許但是已公開的專利，發現區塊鏈技術已被各企業大量申請專利保護，且申請專利的數量於近幾年呈現指數般的成長。而這正意味著業界對於區塊鏈各個技術應用的期待，以及專利全球佈局的先機。為更了解區塊鏈於智財領域發展之可能性，本論文之研究對象，首先於第二至第四章聚焦於區塊鏈相關技術，應如何於現存智慧財產制度中尋求保護，如是否得申請專利此一重要之問題，暨於第五章之後，則接續探討若其得現存制度所賦予之保護，則如何平衡其所受之保護與扶植此產業的公益之問題。亦即，因區塊鏈起源於中本聰所公開之比特幣論文，若非得益於中本聰該論文（白皮書），由其所勾勒出之比特幣（區塊鏈）中心思想，並加上許多有志之士對區塊鏈開發之參與（如以太坊此一開放平台），區塊鏈之發展不可能如此快速。所以，若使某些區塊鏈技術為人申請專利保護，則利基於區塊鏈之上的社群，是否會遭遇專利叢林、相互牽制、限制發展的窠臼呢？但是本文認為，綜觀區塊鏈產業之興起，及可能受到轄制之原因（如未來可能產生之專利叢林之弊），必須一併探討智慧財產保護制度改革之必要，以及是否能有其他配套之制度相配合之，畢竟智慧財產制度具有其獨特性，而無法全由其他制度取代。故於本論文最後一部分，本文藉由探詢自由軟體、開放原始碼之運動，試圖找出可得調和軟體產業與智慧財產制度之衝突，並立於利於扶植區塊鏈制度的政策制定者之角度，提出可能思考之方向。

關鍵字

區塊鏈；智慧財產權制度；開放原始碼；自由軟體；軟體；專利

並列摘要

In recent years, professionals and academia have discussed the application of Blockchain and its issues in terms of regulations. Blockchain has become popular resources of news and media, and most of it focus on whether and how Blockchain will change the world. However, the literature in the legal field focuses more on the application of Blockchain in the financial/ business sector and also, the discussion of the parts regarding financial regulations, while the discussion concerning intellectual property rights is more limited and rare. Although there have not many patents related to Blockchain been granted around the world, only by observing the patents that have been applied but not yet granted by various enterprises, we can know that the number of them has grown exponentially in recent years. This shows the high expectations from the industry for the application of Blockchain, as well as how the global patent strategy of firms worldwide is like. In order to have a better understanding in terms of the possibility of Blockchain development in the field of intellectual property rights, the object of this thesis is to focus on Blockchain related technologies firstly and in the second to fourth chapters, continue to explain how Blockchain seeks protection in the existing intellectual property system, such as whether Blockchain related technologies can be granted with patents. In the fifth chapter, we will continue to explore how to strick a balance between the protection of Blockchain in the existing system and public welfare. That is because Blockchain originated from the Bitcoin papers disclosed by Satoshi Nakamoto, and if the whole Blockchain industry not benefited from the paper of Satoshi Nakamoto, which the central idea of the bitcoin (blockchain) is drawn from it, there's no such huge success now. Also, with the participation of many people with some brilliant ideas in the development of blockchain (such as the open platform, Ethereum), the development of blockchain is extremely fast. Therefore, if some blockchain technology has been granted patent protection, will the community based on the blockchain suffer from patent jungles, mutual restraints, and restrictions the development as a result? However, this article believes that the rise of Blockchain industry and the reasons for potential restrictions of development (such as the drawbacks as a result from the patent jungle that may arise in the future) must be accompanied by the reform of the intellectual property legal system and comprehensive supplementary measures should be taken. In line with this, after all, the intellectual property right system has its own uniqueness and cannot be completely replaced by other legal systems. Therefore, in the last part of this thesis, this article attempts to find out the conflicts between free software industry and the intellectual property right legal system by exploring the movement of free software, open source code. From the perspective of policymakers who are most conducive ones to fostering the blockchain system, this article attempts to provide some proposals.