Patent rights in quantum computing to become increasingly important say experts

Mark Marfé and James Talbot, who specialise in intellectual property law at Pinsent Masons, were commenting after researchers claimed a major breakthrough in the development of quantum computing technology.

Quantum computers, able to solve certain types of problems faster than traditional computers by making use of the principles of quantum theory, have been identified as having potential to enhance research into the development of new drugs, improve traffic control and support developments in artificial intelligence.  However, there are huge costs associated with quantum computing and questions over how easily the technology can be scaled – barriers holding the technology back from becoming mainstream.

In a new paper published by Nature, researchers at University of Sussex and spin-out company, Universal Quantum, said they had found a way to overcome a constraint on quantum computing power – the capacity of a single microchip.

According to the researchers, for the full potential of quantum computing to be realised, it is necessary for quantum bits (qubits) – the fundamental object of information in quantum computing – to move speedily and accurately between multiple microchips. The researchers said they have found a way to achieve this at record speeds and with a 99.999993% success rate and that their work will “facilitate the implementation of modular [quantum computers] capable of fault-tolerant utility-scale quantum computation”.

Professor Winfried Hensinger of University of Sussex, who is also chief scientist and co-founder at Universal Quantum, said: “We knew a modular approach was key to make quantum computers powerful enough to solve step-changing industry problems. In demonstrating that we can connect two quantum computing chips – a bit like a jigsaw puzzle – and, crucially, that it works so well, we unlock the potential to scale-up by connecting hundreds or even thousands of quantum computing microchips.”

Marfé and Talbot said the potential of quantum computing is further reflected in a recent report by the European Patent Office (EPO) (42-page / 2.1MB PDF). It highlighted how the number of quantum computing-related inventions globally has increased “well above the generally observed increase in all fields of technology” in the past 10 years.

The EPO said that patent application numbers “are still rather low” but its report showed some of the most active applicants to-date as including technology companies IBM, Intel, Microsoft and Google, and various notable academic institutions such as Harvard University. Companies from Canada, Japan, China and Australia are also among the most active patent applicants.

While the number of inventions for all fields of technology is continuously increasing, the EPO noted that the increase in the field of quantum computing since 2019 is far above average.

Talbot said: “As quantum computing technology advances, we expect the number of patents filed that protect the hardware and its uses to increase further, and in turn we anticipate that the technology will be increasingly commercialised across all sectors.”

“However, as businesses increasingly explore how they might make use of quantum computing technology, they will need to manage risks around patent infringement. ‘Freedom to operate’ (FTO) audits can help businesses identify third party patent rights that may prevent new players freely using the technology. An advantage of the FTO exercise and spotting risks early is that it then gives you time to devise a patent strategy to overcome that blocker – whether through licensing arrangements or, where appropriate, by challenging the validity of the patents at issue,” he said.

Marfé said: “As new technologies emerge, technical standards are developed to allow the use of that technology and enable interoperability. This technical field is no different. In 2021, the International Telecommunications Union (the ITU) convened a symposium for the various standards bodies worldwide to discuss a ‘standardisation roadmap’ for quantum technologies. Where there is standardisation, any underlying patents obtained in respect of those standards are classed as ‘standard-essential’ patents (SEPs) – reflecting the fact that use of the patented technology is essential in order to implement the standard.”

“Holders of SEPs are typically required to license those patents on fair, reasonable and non-discriminatory (FRAND) terms. We have seen significant litigation in recent years as to what constitutes FRAND licensing terms, with courts across Europe in particular setting out guidance for both SEP holders and technology implementers. There is a right and wrong to handle such disputes and businesses will need to be live to these issues,” he said.