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  • Writer's pictureRosie Burbidge

Can Crypto Open Patent Alliance amend its Bitcoin claim?


We have previously blogged about the upcoming disputes which revolve around the identity of Satoshi Nakamoto the pseudonym used by Bitcoin's creator (see Who created Bitcoin? (& why does this matter?)). The trial in this litigation involving Dr Craig Wright’s claim that he invented Bitcoin is set to be heard over several weeks starting on 15 January 2024.


In the latest hearing ahead of that trial, the claimant, Crypto Open Patent Alliance (COPA) sought to add three paragraphs to its particulars of claim (Particulars). Two of these paragraphs include claims that Wright has altered or tampered with documents. The third paragraph includes specific claims of plagiarism.


Dr Wright resisted the application to amend the Particulars. Mr Justice Mellor’s judgment on the application was published on 24 October 2023.


Fraud, forgery and passing off

In his judgment, Mr Justice Mellor discussed the law on fraud and forgery and drew on case law on passing off. He also noted that there may be many reasons why an electronic document is inauthentic, aside from forgery.


He rejected Dr Wright’s argument that the claims were unnecessary, saying COPA should have the opportunity to challenge the authenticity of documents relied on by Dr Wright and “to press the essential feature of their claim: that Dr Wright's claim to be Satoshi is fraudulent and, consistently with that, the documents he relies upon in support of that claim have been forged”.


In turn, Dr Wright should have the opportunity to explain why these challenges are wrong. However, that places a considerable burden on him, given that there may be as many as 400 relevant documents and his reply evidence of fact is due on 1 December 2023.


In the unusual circumstances, Mellor J proposed that COPA be allowed to plead forgery of a total of 50 additional documents, saying:


It is for COPA to identify the documents which they wish to include in the 50 and they must choose wisely (i.e. it may only be necessary to include some of the drafts of the White Paper, some drafts of the Bitcoin Software, and some documents which fall outside Dr Wright's Reliance Documents).

He also proposed to make directions to limit the disruption to Dr Wright as far as possible.


However, the judge refused permission to amend the Particulars to include the plagiarism allegations. He said that, although the evidence is “legally admissible”, its potential probative value “as similar fact evidence” was extremely slight. Moreover, the issue could be raised with Dr Wright in cross-examination.


What does this mean?

This litigation is very hard fought, and there may yet be further developments ahead of the trial.


As things stand, the trial is still set to start on 15 January 2024. However, these latest developments may lead the parties to apply for a delay given the extra work required.


The judge at least seems keen to stick to the schedule. “As I have indicated to the parties on more than one occasion, I exercise my case management powers to ensure this trial proceeds in January 2024, so far as is possible...”.


To find out more about the issues raised in this blog contact Rosie Burbidge, Intellectual Property Partner at Gunnercooke LLP in London - rosie.burbidge@gunnercooke.com

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