Guest Post by Sinan Utku, Bilkent University Law School (Ankara); J.D. (Columbia University Law School) and Ph.D. (Yale University, physics)
The field of quantum computing is poised to advance dramatically in the near future. If expected advances actually occur, many problems that classical computing technologies cannot feasibly solve may become tractable. Given that the field is on the verge of fast and important technological advancements in this field, it makes sense to consider the patenting strategies that will be needed to protect them.
This article discusses patent eligibility of quantum computing inventions under U.S. law in the context of a concrete example. As such, the article is intended for workers in the field and assumes elementary quantum computing knowledge.
Patent Eligibility
Patent eligibility is one of the basic substantive requirements to obtain a patent. Not all creative output can be patented. For example, a painting, or a design, is obviously not patentable and can be only protected using other types of intellectual property. More arguable issues of patent eligibility arise in connection with computer-implemented inventions. For example, most practitioners in most patent systems would probably agree that a methodology or computer program for controlling an apparatus in an industrially useful process should be eligible. On the other hand, they would likely agree that a methodology or computer program that is specified at the level of abstraction of the manipulation of data in accordance with an algorithm, with no nexus to any specific technological process, should not be patentable. For example, a computer program directed to conversion of units, e.g., from inches to centimeters, even if it satisfied the other requirements of patentability, such as novelty and non-obviousness, should not be patentable. Otherwise, activities in entirely different fields that require such conversions, from biotechnology to mechanical technologies to hi-tech, might be pre-empted wholescale by patents issuing with broad and wide-ranging scope. There is a vast spectrum of computer-implemented inventions that span the gap between these extremes in which the issue of eligibility is less clear.
