Preparing for the Quantum Leap: IP Protection for Quantum Information Systems

Unless you have been living under a proverbial rock, by this point you have heard about ChatGPT, Microsoft’s Bing’s new AI-powered search tool (aka Sydney), and other forms of “generative” AI (machine learning that generates new content from loads and loads of old content—a copyright lawyer’s nightmare). NFTs (nonfungible tokens that reside on the blockchain—a trademark lawyer’s nightmare) are also now familiar, especially in light of the trial win for Hermès in the Birkin Bag lawsuit. But these are only two of the emerging technologies that all of us (especially IP lawyers) need to know about. Today, we introduce: quantum computing, and its parent, quantum information science. Yes, just when you thought technology couldn’t get more confusing, it has!

The basic premise that computers boil down to ones and zeros will sound familiar to even the least tech-savvy among us. Diving deeper, each digit (or bit) in this binary language traces to its own transistor, or gate in a computer’s hardware. Millions of gates in each CPU cooperate to execute commands written in binary code. While innovations in material science and hardware engineering have steadily advanced classical computing by cramming more gates into each processor, the earliest supercomputers of the 1960s and their most powerful modern counterparts all suffer the same binary limitation: each gate is simply open, or closed. Quantum information science (QIS) is dedicated to moving beyond this limitation, harnessing quantum physical phenomena like “superposition” and “entanglement” to build gates that can be more than just open or closed, and can thus support spectacular increases in processing speed over classical processors. Able to perform calculations and solve problems previously thought unsolvable, quantum processing represents a dire threat to the cryptographic and other cybersecurity infrastructures presently relied upon to guard sensitive data and valuable data around the world. After highlighting key public initiatives to advance and prepare for quantum technologies, this article summarizes recent history and current trends in the QIS patent landscape, explains some of the challenges and opportunities for prosecuting patent applications directed to quantum technologies, and makes a case for trade secret protection as a potentially attractive alternative to patents in this unique area of innovation.

Governments Prepare for a Quantum Revolution