Introduction
There are many companies that developed genuinely breakthrough technology and then lost it - not because of better technology or because they failed in the lab, but because they fell to a patent lawyer on the other side of the world.
And quantum computing is the highest-risk technology investment of the decade. And one of the least understood from a legal perspective. Research proceeds at such a pace that it might better be called an analog to tectonic activity. An unpublished manuscript filed on a Tuesday will make any assertions about the time it takes your team to produce something "patentable" look like a lie. A competitor's filing in a jurisdiction that you didn't target can give them the licensing advantage over the technology you created. In many jurisdictions a conference presentation made prior to priority date renders the rights entirely forfeited[1].
These are not "edge cases".The normal operating conditions of quantum IP in 2024 is to be.
All this is unique about quantum computing: there's a kind of global market where there's no single home market, there's a research ecosystem spread across dozens of countries, including universities, defense programs, and hyperscalers' research and development divisions, supply chains for the materials required to use it will cross jurisdictions, and it's a first-to-file patent system that will reward developers who will get to the market first rather than those who will invest most deeply.There is another technology where eight months of development translates into many improvements in the generation of qubits, and the traditional route of "file domestically, expand later" is not just sub-par, but simply impossible.
The businesses that will make quantum computing a commercial reality are currently being developed. Some of them are doing a good job with their IP strategy. Many are not. There will be no technical difference between the two groups in their papers or fundraising announcements. It will be brought up in acquisition negotiations, in licensing disputes and in courtrooms years later when the technology has reached a maturity level that it can be worth fighting over in bulk.
This article has been written for founders, technical leads and IP counsel who are developing in this area and want to get it right from the start. This includes discussion of the quantum patent landscape, the specific jurisdictions relevant to quantum patents, and why they are so, the four layers of quantum patent protection before first public disclosure, and the practicalities of quantum patents and a multi-jurisdictional filing strategy.
Although the execution is not quite the same, the central idea is simple: In quantum computing your most defensible competitive asset is your priority date. Your team, your technology, your road map, can all be copied, funded and improved upon by your well-funded competitors. A priority date may not. The only thing in this race that can't be purchased after the fact is that.
File broadly. File early. When building, file before others know about it.
The Quantum IP Landscape Is No Ordinary Tech Race
Traditional patents guides have all been written in a world where the competition landscape was relatively easy to predict. Apply in your home jurisdiction, maybe in the EU, maybe Japan. Test your product out and decide whether to expand.
Quantum computing takes all that away.
The industry is advancing through university research in Waterloo and Delft, defense-driven research in Beijing and Washington, R&D arms of hyperscalers in Mountain View and Redmond, as well as a long tail of well-funded startup operations running in stealth mode. There is no "home market" for quantum advantage; the technology is inherently global, its supply chain for cryogenics and photonics extends to at least a dozen countries, and its customers (banks, pharma, defense contractors) come from all major economies.
If your competitive advantage is in a novel approach to error correction or qubits, you are not playing in the regional market. You are playing globally right from day one.
This makes the IP strategy much different.
Priority Date : Why It Makes All the Difference
You have 12 months from your first filing to lay claim to priority in member states, courtesy of the Paris Convention[2]. That seems like a safety net. It is actually a trap set by the convention for the unwary, to trick founders into believing there's still time.
Here is how it works. Team A files the patent at the Munich office, month one. Team B, working on something remarkably similar in Singapore, files their filing in month four. In first-to-file systems, which include the United States after the AIA amendment, the critical issue is that priority date neither who developed the technology first nor who published it first nor even who understands the science best[3].
In quantum computing, 8 months is an eternity. The difference between Q1 and Q4 in any given year is a couple of generations of qubit fidelity increase, new architectures, and peer-reviewed papers that, once in the public domain, are prior art to your own pending patents.
Your priority date is your stake in the ground. Everything else is just commentary.
The Jurisdictions that Actually Matter and Why
Patent offices are not created equal when it comes to quantum. While filing in multiple jurisdictions does not mean filing everywhere, it means filing strategically in those markets and manufacturing centers where the technology will be implemented, litigated, and licensed.
- United States- The go-to place. Examination at the USPTO of quantum inventions has become much more sophisticated, and US patents are still the gold standard of licenses on the worldwide market. Post-Alice, it's not easy to claim software-related inventions, but hardware-related inventions in the realm of quantum (especially inventions in areas of qubits' fabrication, control electronics and cryogenic system) are usually granted[4].
- European Patent Office- Granting one patent effective in 40 countries, once validated. When it comes to the financial sector, pharmaceuticals and logistic industry all industries heavily represented in Europe – EPO jurisdiction cannot be overlooked. Over last 10 years, European examiners have become quite technically savvy in the area of quantum mechanics[5].
- China (CNIPA): This choice is likely to upset Western entrepreneurs and that’s not without reason. But think about it: China possesses the world’s most powerful quantum R&D infrastructure apart from the US; accounts for a majority share of publications in quantum computing field worldwide; and is where the manufacturing ecosystems exist which produce parts used in building quantum hardware[6]. Refraining from filing in China does not shield your innovation from Chinese competition; all it means is that you lack any means to defend yourself against patent infringement. Filing allows you to build up some leverage, licensing options and bargaining power.
- Japan and South Korea: These nations possess a strong semiconductor and electronics manufacturing industry which becomes ever more significant in terms of quantum hardware development. Sony, Samsung and others are not just spectators in this contest.
- Canada and Australia: These nations are often overlooked in favor of other jurisdictions but both possess an active quantum research community (the “Quantum Valley” in Canada is located in Waterloo), an easy-to-examine environment and good relationships with the US on a bilateral level[7].
- India: It’s becoming increasingly relevant quicker than most IP strategy specialists could keep up. The “National Quantum Mission” in India is proof that there is genuine commitment from the government, and even the national patent office there has been modernizing itself.
The PCT pathway applying for your patent internationally with one single filing of an application through the Patent Cooperation Treaty, gives you the means to efficiently protect your rights in 157 countries with just one filing, giving you 30 months’ time before entering national phase in each country[8].
The Protection: The Four Layers of Quantum IP
Quantum IP is not one-dimensional. There needs to be a complex jurisdictional strategy that understands what the filing is about, due to the fact that there is a layered structure of claim landscape in quantum technology, which doesn’t correspond to the conventional software or semiconductor IP.
- Layer 1: Qubit Architecture. Physical layer. The foundation, comprising superconducting qubits, ion trap qubits, photonics and topological. This layer includes the deepest claims, which will be hard to design around, and is the most valuable one. It is also technically challenging to patent. Correct claiming at this level will protect you for twenty years.
- Layer 2: Controls and calibration systems. The legacy electronics and software that control quantum hardware often have much greater immediate commercial potential than the qubit hardware itself. In these cases, there is often cleaner prior art for these claims and they may be enforceable against a larger variety of competitors.
- Layer 3: Error Correction and Fault Tolerance. It is here that the current patent “arms race” is fiercest. Error correction is what makes the move from NISQ hardware to scalable quantum computing a reality and everyone understands this. The patent density in this space is astounding. Any new players will need FTO studies before they file and before they design[9].
- Layer 4: Algorithms and Applications. This is the most legally risky layer, especially in the US since Alice. Hardware-specific quantum algorithms have more legal defense than purely abstract method patents. Work with counsel to link algorithms to particular hardware wherever possible.
Day one, multijurisdictional strategy must account for all four levels at once because your competitors do.
The Mistake That Kills Portfolios: Sequential Filing
Sequential filing domestic first, then expand is the standard procedure across most technologies. But in quantum computing, it’s a mistake.
The arguments reinforce each other.
Starting with publication. In almost all jurisdictions, the patent application will be published 18 months from the priority date. This means that the invention disclosed in the patent application will become prior art against its own continuation applications and will certainly be prior art against any applications filed by your competitors. The establishment of a priority date before the publication of the patent application is the only way to avoid being your own prior art.
And second, the issue of prior art. The quantum computing field develops so fast that it regularly outpaces the standard IP timelines: an article published in a conference or a preprint on arXiv can render unpatentable what would be novel six months ago. Each month you wait to file increases the risk that you are waiting until someone else publishes something that renders your claims invalid.
Competitive intelligence comes next. Patent filings are in the public domain. From the point your PCT application is published, your competitors know about the technology that you have created, what you consider to be innovative and how and where you have protected it. Your competitors will file continuations, work-arounds and blocking patents in countries where you have not yet gone into the national phase process.
Budget Objection – Answered Straight
It's costly to file in multiple jurisdictions. An extensive PCT patent application followed by eight to ten national phase entries filed well will require you to spend anywhere from $150,000 to $400,000 over the entire period of prosecution. That's not chump change for an early-stage company.
Here's the straight answer to this objection.
Any quantum computing company with a truly novel product under its belt is in essence developing itself into either a company looking to license their tech out, get acquired, or become the backbone of large companies which will pay good money for access. In all of these instances, the IP portfolio is the core of enterprise value. And a thin IP portfolio filed in one jurisdiction is going to be discounted substantially by potential acquirers and licensees who recognize the global nature of the marketplace. A thick multi-jurisdiction IP portfolio amplifies every other aspect of your enterprise value.
The issue isn't whether your IP will cost you $300,000. The issue is whether spending $300,000 on IP protection will create $30 million of enterprise value. And in quantum computing, if it's truly novel, the answer is almost always yes.
This is common knowledge. The sophistication of the IP due diligence process in quantum acquisitions has increased considerably in the last five years. Companies in this arena such as IBM, Google, Amazon, Microsoft, and the big defense companies all have patent teams who will value your portfolio with precision when it comes to acquiring it.
Operational Implementation: What "Day One" Truly Means
"Day one" is an abstract concept rather than an operational one. Specifically, it means the following:
- Prior to any public disclosure- Prior to giving any conference presentation, submitting papers, or demonstrating the invention to any potential investors/partners, there should be a filed application securing your priority date. Public disclosure prior to filing is fatal for most jurisdictions, and even in the US, where grace period applies, it will create problems. Never count on a grace period – it is an option of last resort.
- Prepare a good provisional application- Provisional patent application is a relatively inexpensive tool to secure your priority date, while you work on your claims in the US. However, a provisional only covers what it discloses – poorly drafted provisional filed hastily will provide poor protection. Prepare a meaningful provisional application that covers the whole scope of the invention.
- File the PCT application either simultaneously or immediately after that- The PCT application is a strategic move giving you options in all jurisdictions, as well as a 30-month period to decide about entering the national phase.
- Develop a prosecution strategy that takes litigation into account- Patents that seem beautiful to prosecute are often terrible when litigated. Seek the assistance of counsel who has been on both sides of patent disputes in the jurisdiction where you operate.
- Manage trade secrets in tandem with patents- Everything does not need to be patented. Certain processes, calibration, and algorithms could benefit from protection through trade secret law in jurisdictions where enforcement is unpredictable.
The Geopolitical Dimension That You Cannot Overlook
Quantum computing stands at the heart of a geopolitical contest which is actively reconfiguring technology policy in real-time. Export control systems have expanded. Technology decoupling between the US and China has led to bifurcation of technology stacks. Licensing quantum technology across borders faces a regulatory landscape that is more complicated than at any time in the history of the technology.
This is both problematic and beneficial for the world of patents.
Where there are problems: the review by CFIUS, compliance with export controls through EAR and ITAR, restrictions on foreign filing licenses, and the need for government permission to file in certain jurisdictions. Some quantum technologies are specifically controlled[10].
Where there are advantages: the importance of domestic quantum capability in a geopolitically charged environment has made patents in friendly jurisdictions very valuable for customers in governments and defense organizations that will not acquire technology from rival nations. A portfolio with good coverage in the US, EU, UK, Australia, and Japan has the right profile.
The IP counsel you have on board must comprehend both the laws on patents and the geopolitical situation. In the field of quantum computing, they are not separate issues.
Case Law that Should Be Keeping Quantum Founders Awake at Night
Patent strategy devoid of case law is purely theoretical. The following examples demonstrate just what is at stake if quantum IP strategy falls flat or when enforcement goes well.
- IonQ v. Honeywell (Trapped-Ion Disputes, 2021-Ongoing[11])
The creation of Quantinuum from Honeywell's own quantum division created a conflict between two organizations in the same architectural space – trapped ions. The ongoing battle over intellectual property plays itself out both through negotiation and patents filed by both parties and demonstrates one of the essential truths of quantum IP: when two legitimate competitors exist in the same architectural space, the portfolio with the earlier filing dates and broader geographical coverage will win the day, no matter whose hardware has better performance metrics.
Similarity of architecture among competing firms is a certainty that should be planned for, not a chance that needs to be accounted for. Understand where you stand in terms of IP relative to any firm in your qubit modality before you have to because of legal action.
- IBM's Superconducting Portfolio and the Licensing Overhang
IBM's IP in superconducting qubits dates all the way back to pioneering research in the 1990s, establishing an overhang on all freedom-to-operate considerations in this area[12]. Companies like Google, Rigetti, and even a whole wave of hardware startups were forced to deal with IBM's IP rights when deciding on their architectures either designing around certain patents, engaging in cross-license agreements, or simply taking the risk.
Takeaway: It is always the earliest formed portfolios that set the rules for all subsequent players. If you are entering an area where one of the portfolio giants has priority dates going back to ten years ago, be careful.
- Google's Sycamore and the Publication Risk[13]
By the time Google published their paper on quantum supremacy in Nature in 2019, they had already filed extensively across many countries. Upon publication, the field’s prior art landscape became instantly transformed for anyone trying to do research on the same method of random circuit sampling. Research teams that have been developing similar technology without any priority dates now found themselves operating under the shadow of a patent that completely redesigned the landscape of what could be patented.
Lesson: Publications in quantum computing represent prior art events, not merely scientific breakthroughs. You cannot run a separate timeline for filing from one for publication.
- Alice Corp. v. CLS Bank and Its Quantum Implications (US Supreme Court, 2014)[14]
Alice is not a quantum case, but it applies to all algorithm-based patent applications filed in the U.S. The Court’s two-prong test of patent eligibility has been a bane for all those algorithm-based patents lacking sufficient specifics about the hardware involved.
Lesson: The quantum algorithm claims should be tied down to some hardware specifics and improvement. The presence of the word “quantum” alone will not guarantee you patentability. Consult your attorney to ensure that your algorithm-based claims are linked to the hardware aspect.
The Bottom Line
Quantum computing is a winner taking most technology in most of its application domains. The company which first accomplishes fault-tolerant quantum computing at commercially viable scale will wield the ability to license, the customers, and the regulation that will prove very hard for followers to overcome[15].
In such a race, the patent portfolio is not an ancillary concern. It is a crucial competitive tool – but one that can only succeed if it was constructed properly from the start.
Multi-jurisdiction filing from day one is not a cautious stance to take. It is an aggressive one, taken by founders and IP professionals who know that the risk of underscoring protection for such a revolutionary technology is always higher than the risk of overstating it.
File broadly. File early. File like it’s something worth protecting because if it’s not, you have other problems to worry about.
The nexus of quantum physics and IP law requires more than a superficial approach to be effective. Should you find yourself operating at this crossroads, it's guaranteed that the quality of your IP protection strategy will be put to the test by your competition, potential buyers, and ultimately the courts.
[1] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Annex 1C, WTO
[2] Paris Convention for the Protection of Industrial Property, Article 4
[3] Leahy-Smith America Invents Act (2011), USPTO
[4] USPTO Subject Matter Eligibility Guidelines (Post-Alice updates)
[5] European Patent Office Guidelines for Examination (latest edition)
[6] China National Intellectual Property Administration (CNIPA) Annual Report
[7] Perimeter Institute + University of Waterloo Quantum Valley reports
[8] WIPO – PCT System Overview
[9] Fowler et al., “Surface codes for fault-tolerant quantum computation,” Physical Review A (2012)
[10] U.S. Bureau of Industry and Security (BIS), Export Administration Regulations (EAR)
[11] IonQ IPO filings + Honeywell/Quantinuum press releases
[12] IBM Research – Quantum Computing Patents Overview
[13] Arute et al., “Quantum supremacy using a programmable superconducting processor,” Nature (2019)
[14] 573 U.S. 208 (2014)
[15] World Economic Forum & McKinsey Quantum Technology Reports