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How to Protect Quantum Computing Innovations With IP Rights

Aug. 13, 2021, 8:01 AM

A trillion-dollar industry? It’s hard to believe, but that’s where quantum computing is headed, solving problems considered extremely difficult or impossible for current computers. Patent filings in this space grew exponentially over the past several years to match pace with the increasing commercial prospects and private funding.

Analysis of U.S. patent applications put quantum computing in the top 10 fastest growing technologies in 2020. Leading applicants include IBM, Google, Northrop Grumman, D-Wave Systems, and Microsoft.

As industry participants look to protect their innovations, they should keep in mind patent, copyright, and trade secret protections and the practical limitations of each.

Patent Protections

Patents grant their holders the exclusive right to prevent others from manufacturing, selling, importing, or using the patented innovation for a finite period—which is typically 20 years—in exchange for publicly disclosing the invention.

To date, there are over 200 U.S. patents pertaining to quantum computing. Their subject matter spans machine learning, optimizing supply chains or financial asset portfolios, enhancing molecular simulations for pharmaceutical development, and improving the error-correction of quantum hardware.

Patents may be sold or licensed, and they also carry defensive utility. Land grabs for patents in disruptive technologies often spark patent wars. Standard-setting organizations are already seeking to develop quantum computing standards, and patentees of standard-essential patents unwilling to license their technology could seek royalties from those adopting the standard.

Industry players, even those not interested in offensive litigation, may benefit from patents as a bargaining tool or to preclude competitors from gaining interfering intellectual property rights, thereby ensuring freedom to operate.

Patentability Issues Complicating Enforcement

Certain patentability issues, however, may complicate prosecution or enforcement. Quantum computing innovations frequently involve improvements to hardware, in which cases, potential rejections will commonly arise from obviousness under 35 U.S.C §103 or lack of novelty under §102. Certain quantum computing innovations may also be deemed ineligible subject matter under §101.

Subject matter ineligible for patent protection includes abstract ideas, such as mathematical formulas, and natural phenomena. Because quantum computing relies on algorithms leveraging quantum mechanical phenomena of superposition and entanglement, §101 may pose an issue to certain claims. The U.S. Patent Trial and Appeal Board already sustained a §101 rejection on the grounds that quantum entanglement is a natural phenomenon.

Integration of an abstract idea or natural phenomena into a practical application may be patent eligible, and courts find that improvements to technology, such as computers, may indicate such integration. Even if directed to a practical application, however, quantum computing claims should not be so broad as to encompass what courts have termed software per se.

Because software per se does not fall within one of the categories of patent eligible subject matter recited in §101, when a claim’s broadest reasonable interpretation covers software per se, examiners routinely reject the claim under §101 as covering non-statutory subject matter.

To lessen such risk of rejection, claims to quantum software would benefit from clearly embodying tangible, non-transitory matter, with hardware elements added when possible.

Copyright Protection

Alternatively, quantum software is eligible for copyright protection. Software copyrights, which are obtained through registration, grant the author exclusive rights for the life of the author plus 70 years. These rights are assignable and generally owned by employers when an employee creates the work in the course of her employment.

In a fast-changing industry, the speed of copyright registration (which can be expedited to mere days) compliments the rights won at the end of a longer patent prosecution cycle.

Difficulties Detecting Infringement

In addition to patentability challenges, enforcing quantum computing patents may be complicated by difficulties in detecting infringement. While establishing infringement may require reverse engineering, quantum hardware may be inaccessible because much of today’s quantum computing is cloud-based.

Moreover, the fact that quantum computing occurs in a superposition of states, which is destroyed when observed, and that logic operations are designed to only measure final results may further complicate reverse engineering. Patent protection limitations may render secrecy a desirable alternative.

Trade Secret Protection

For technologies that cannot easily be reverse- engineered, trade secret protection is another way to safeguard innovations. This protection arises automatically and is not limited in time, lasting until the secret technology is independently discovered, reverse engineered, or disclosed by the owner.

While the protection is automatic, companies can take legal action to ensure the secret is not disclosed, including subjecting those divulging the secrets to criminal penalties. The broader subject matter and potentially unlimited years of protection for trade secrets give it a certain edge over patent protection in the eyes of many companies.

While patents generally have a life of 20 years, quantum computing is currently in its infancy, and quantum computers may not become widely commercially available for over a decade. If inventions may not reach commercial maturity during the lifetime of the patent, trade secret protection may be preferable.

In contrast, technological innovation could accelerate in the future to the point that a patent would be obsolete by the time it grants. Similarly, because a host of doctrines sometimes lead courts to limit the protection afforded by copyright law, trade secrets may be the preferable method of protecting an invention.

While different companies choose strategies they hope will best protect their technology in light of anticipated go-to market plans, a healthy mix of information security policies combined with a focused intellectual property strategy will help secure their innovations a place in the future of quantum computing.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Ben L. Wagner is a partner at Troutman Pepper and is an intellectual property and complex commercial litigator.

Gerar Mazarakis is an associate at Troutman Pepper and intellectual property litigator.

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