By Michael J. Attisha, Ph.D.
Quantum computing companies regularly file patent applications, but will the patents that result expire before they are commercially relevant, or could they skyrocket in value in a few years? As explained below, this is likely an excellent time to pursue patent protection for quantum technologies. Applicants should, however, present their technology carefully to get the most value out of their patent portfolio. Considerations for drafting a strong quantum patent application are described below.
Is Now the Right Time to File?
A patent attorney will usually tell you to file early and often. This can be good advice, but funds have limits and it’s not practical or sensible to file patent applications on every new idea. A patent is a business asset, and it can be helpful to run a cost-benefit analysis on the question to determine the business value of the patent. So where does the quantum computing field stand, and does it make sense to put resources into filing quantum computing patent applications today?
New technologies go through several stages of growth. There are likely many ways to draw the lines, but these stages generally are as follows:
- Nascent – The work is new, and it’s unclear what, if anything, will be successful.
- Developing – There have been early successes, but there are still many challenges to overcome.
- Growth – The critical problems have been solved, and the commercial technology can be described.
- Market – Commercial products are being developed and then sold, leading to potential patent litigation.
For example, the technology for using mRNA to produce vaccines developed in the late 2010s began way back with early studies on mRNA in the 1960s. In the late 1980s, a biotech startup demonstrated that packaged mRNA could deliver genetic information to produce proteins in living tissue. In the 1990s, it was suggested that this approach could be used to provoke antibody responses, but it wasn’t until after the year 2000 that a solution to the immune response preventing effective use of mRNA was discovered. The field then grew rapidly, and in the 2010s an effective delivery technique using lipid nanoparticles to package mRNA was discovered.
With mRNA development for vaccines culminating during the COVID-19 pandemic, its stages were roughly as follows: nascent (1961-1990); developing (1990-2005); growth (2005-2017); and market (2017-present). Litigation is ongoing over patents filed during the mid-to-late growth stage.
Similarly, the stages of smartphone technology roughly went as follows: nascent (1990s); developing (late 1990s to early 2000s); growth (2000-2006); market (2006-present). The so-called “smartphone patent wars” that took place from around 2010 to 2015 generally related to patents that issued from patent applications filed between 2000 and 2010 (e.g., patents on things like multi-touch, slide-to-unlock, and pinch-to-zoom derive from patent applications filed in the 2005 to 2007 window). Historically, the most valuable smartphone patents were filed in the late growth or early market stages.
So, where is quantum computing in this framework today? We are likely in the late developing to early growth stage, as some critical problems recently have been solved (or soon will be), but others remain (notably the challenge of scaling current approaches to thousands or millions of qubits).
Nonetheless, some of the quantum computing patent applications being filed now may end up being valuable in 5-10 years. For example, patent applications filed in the next year or two relating to qubit scaling techniques could well cover approaches that end up being widely adopted, and consequently might be the quantum computing equivalent to the pinch-to-zoom patent application.
Now is, therefore, a good time to focus on strong patent filings in quantum computing. But how do you ensure your protection is strong?
Considerations for Drafting a Strong Patent Application in Quantum Computing
When it comes to effective patenting, quantum technologies pose some unique challenges. For quantum, the choices of what to patent and how to describe it in the patent application are crucial to obtaining strong patent protection.
One approach in a patent application is to focus on mathematical aspects of quantum technology, such as system physics, a control technique, or a particular quantum state. Indeed, inventors often describe their own work in this way. This approach leads to challenges, however. If an examiner feels a patent appears abstract and not physically grounded, the patent can be rejected as ineligible for patenting under current law, particularly in Europe. Even if granted, they can be more challenging to enforce because what the patent covers can be unclear.
Grounding the patent application in the system’s physical nature, focusing on a quantum circuit’s technical implementation rather than the algorithm behind it, has been an effective approach. For example, for control techniques: What is the sequence of actions being performed? What system is needed to practice the techniques? How does the classical part of the system interact with, measure, and react to the quantum system? Even patents relating to quantum error correction, which are typically mathematical and algorithm-focused, should be approached in this way.
If the techniques are applicable to multiple types of qubits, consider providing one or more examples and explaining the breadth of the technique’s applicability. This approach may result in a patent that covers a physical system and/or a method of operating a physical system, which can be more effectively patented as well as enforced.
It is also important that the patent application tells a story about why the invention is novel and how it improves a quantum computer. A patent application is a document written for the benefit of several parties: a patent examiner, the public, investors, and potentially a judge or jury. For these audiences, a clear and accessible explanation of the technology is important for inventions in quantum computing. Trying to explain to a jury the technology behind a highly mathematical patent – without clearly saying what the invention is – would be difficult and undermine the patent’s value. Notwithstanding that most patents are not litigated, competitors still evaluate the strength of a patent portfolio and make decisions based on their conclusions, as do investors. So, a patent’s strength also matters outside of a courtroom.
Most, if not all, of the patent application should be drafted at a level that someone with a college-level background in physics or electrical engineering could understand. Patent examiners at the United States Patent and Trademark Office typically have a bachelor’s degree in a non-physics subject, so having an accessible disclosure with clear drawings generally will facilitate a more productive conversation with an examiner about the invention. I take this approach, and I have had patent examiners thank me for educating them in an interview.
Ultimately, the process of writing a strong patent application in quantum computing requires a patent attorney with the skills to dig through the inventor’s math and physics to find the core of the invention, figure out how to present that core in physical terms, and then build the patent application around that. An attorney with a strong physics background, including a Ph.D in physics, is well-positioned to tease apart something of this complexity and describe it clearly.
Conclusion
For quantum computing companies and those looking to patent work in this space, it may be beneficial to focus on obtaining strong patent rights now. Some of the foundational patents in the first commercially successful quantum computers likely are being filed today or will be filed soon. However, unless these patent applications are drafted by an attorney with deep technical experience in this area, these potentially foundational patents may not hold up to the intense scrutiny of a lawsuit, as competing patent attorneys well know.
Mike Attisha is Of Counsel with the firm GreenbergTraurig in Boston, Massachusetts. He counsels clients in a wide range of technologies, with a particular focus on quantum technologies and technologies relating to nuclear physics. He can be reached at [email protected].
December 5, 2024
Brilliant presentation.