(News.Bloomberg.Law) Troutman Pepper attorneys Ben L. Wagner and Gerar Mazarakis lay out patent, copyright, and trade secret protections and the practical limitations of each for innovators seeking to protect their IP for quantum computing. IQT-News has summarized their discussion here.
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.
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.
Patents may be sold or licensed, and they also carry defensive utility.
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.
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.
Difficulties Detecting Infringement
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.
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.
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.