As quantum computing advances, it adds new complexities for patent and intellectual property. Excel V. Dyquiangco highlights how innovators protect hardware, software and algorithms.

Quantum computing is rapidly evolving from a theoretical concept into a transformative technological frontier. Unlike classic computers that process information in binary bits (0s and 1s), quantum computers harness the principles of quantum mechanics – superposition, entanglement and interference – to perform certain computations exponentially faster than traditional systems.

With global investment surging now and in the next few years, quantum innovations are indeed reshaping industries, intellectual property frameworks and systems, and national technology strategies.

“Quantum computing innovations enable certain applications which involve large amounts of data and computation to be performed more efficiently than classical computing systems,” said Liling Heng, a senior patent attorney at Amica Law in Singapore. “To illustrate examples of quantum computing innovations, it is helpful to understand how such innovations may be categorized based on established information and communications technology fields, namely hardware, software and connectivity.”

She added that under Singapore law, it is helpful to understand what constitutes a patentable invention, what is excluded from patent protection, and how computer-implemented inventions and AI-related inventions are examined by the Intellectual Property Office of Singapore. “This is because quantum computing innovations and AI-related inventions may be regarded as subsets of CII,” she said.

At FB Rice in Australia, which has been patenting hardware and software innovations in quantum computing for over 20 years, working with Australian innovators has been at the forefront of efforts to build fault-tolerant quantum computers.

“A notable feature of quantum computing innovations is that each innovation is usually specific to a particular hardware platform, given that qubits, the fundamental carriers of quantum information, can be implemented on a range of different physical systems,” said Manuel Schmidt, a partner at FB Rice in Brisbane. “For example, qubits realized with photons need to be manufactured and controlled very differently to qubits represented by electron spins in diamond crystals.”

He added: “Innovations in quantum computing hardware include the design or fabrication of the qubits or quantum computing architectures, providing benefits such as reduced fabrication effort or costs, improved scalability and increased error tolerance. A large part of the innovation lies in the software aspects that can be protected by patents. Software is essential for controlling the physics of the qubits, and many quantum computers require control pulses with exact timing, which is calculated by control software. Quantum computers are hybrid machines with a ‘classical’ computer performing critical tasks outside the physics of quantum systems, and innovation comes from both realms.”

His colleague, Jordan Wray, an associate at the same firm, said that other quantum software that FB Rice patents includes quantum error correction (necessary to obtain useful computation results from a quantum computer), determining electromagnetic control sequences that reduce errors when applied to the qubits, quantum algorithms and human-machine interfaces.

“Beyond quantum computing innovation, the FB Rice computing and electronics team has also worked on quantum innovations in related fields such as quantum communication and quantum key distribution for secure communications, quantum machine learning, and the generation of additional quantum states for error correction,” he said.

“Quantum sensing is another area with demonstrated commercial success using current architectures, with applications including medical imaging, mineral and ore detection, and navigation,” he noted.

Patenting quantum innovations

“Quantum computing operates at the intersection of mathematics, physics and computer science, leveraging phenomena such as superposition and entanglement to achieve computations infeasible for classical machines,” said Gaurav Chhibber, a partner at Chadha & Chadha in Gurugram. “Algorithmic advances like Shor’s algorithm or Grover’s algorithm, in isolation, remain excluded. However, when linked to specific hardware architectures, error-correction mechanisms or communication protocols, such inventions demonstrate technical effect and can be patentable. The applicant’s challenge is to present innovations as practical systems with measurable technical contributions.”

He added: “The guidelines also emphasize the requirement of sufficiency of disclosure, i.e. the Applicant must describe the hardware-software interaction in detail. One cannot simply claim the ‘logic’ without explaining how it operates within the quantum circuit or gate. To meet the legal requirement for sufficiency of disclosure, the description must be comprehensive enough that a person skilled in the art, someone possessing the ordinary skill and knowledge in quantum mechanics and computer engineering, can replicate the invention without undue experimentation.”

While FB Rice lawyers have successfully represented clients in patenting many innovations in software and algorithms relating to quantum computing, Schmidt says that some inventions encountered are very mathematical and could be considered abstract in their broadest form. “However, they are ultimately tied to a physical problem, emphasized in the patent specifications,” said Schmidt. “This emphasizes the importance of software innovations to the overall quantum computing system and being integral to the overall system rather than a standalone abstract concept.”

“During examination, we typically argue that the software or algorithm solves a technical problem,” he noted. “We have not yet encountered any major issues with patentability, which emphasizes again that the view of software being not patentable is a misconception, especially in the field of quantum technologies.”

“That being said, software and algorithms are not instantly patentable simply because the claims say, ‘quantum computing.’ Australian practice focuses on the substance of the invention and not the form of the patent claims. For this reason, it is crucial that the drafting patent attorney fully understands the invention and can advise clients on the software that can be patent protected,” Schmidt said.

“Like CIIs, it must be established that the software has a technical effect and is directed to a technical solution to a technical problem,” said Heng. “However, there are situations where quantum computing software or algorithms are not patentable such as, for example, if they fall under the categories of scientific theories, mathematical methods which are not patentable, or there is no technical effect.”

Challenges in protecting inventions

One of the primary challenges in protecting quantum computing inventions is their extreme technical complexity, which has several implications, according to Wray.

“First, it is crucial to have attorneys with sufficient qualifications, which is why FB Rice hires PhD-level physics graduates as our patent attorneys,” he said. “Similarly, effective examination requires examiners with the time and specialist knowledge to fully understand these inventions. We have had positive experiences with the examiners at IP Australia, despite an overall skills shortage in the field.”

“While AI tools can be useful in some contexts, they do not resolve this skills gap,” he pointed out. “With some of our quantum clients, we have agreed not to use AI for emails and technical documentation because it blurs the information content in those documents and perhaps surprisingly makes it harder to distil the crux of the communication. Perhaps it could be said that AI adds more of the ‘average’ of language around the technology, which is exactly what we need to remove when we are identifying a new invention.”

Another challenge arises with the requirement for utility, otherwise known as usefulness in Australia. “Quantum computing is currently in the noisy intermediate-scale quantum (NISQ) computing era, which is classified as quantum devices that are not advanced enough yet for fault-tolerance or large enough to achieve quantum advantage (can solve problems that are unfeasible for a classical computer),” Wray explained.

“We have seen IP Australia push back on quantum computing innovations that can only be applied or are only useful on fault-tolerant quantum computers, currently beyond current technological capabilities. We have also encountered instances where a quantum computing innovation cannot be performed using current technology,” he said. “For example, in one innovation we handled, a particular quantum state of light needed to be generated for quantum error correction, but this quantum state could not be feasibly generated at the time. These considerations form a key part of the strategic advice we provide to clients, particularly when deciding whether to file immediately or to delay in line with technological and commercial readiness.”

A further challenge lies in translating theoretical research into a commercially viable product. “While theoretical advances themselves are not patentable, their practical applications can be. Determining a practical application from a theoretical concept is a core part of our practice as quantum patent attorneys. We see ourselves as the bridge between research and commercialization and clients come to us to develop strategies on how to protect the core of their invention with a practical application in mind, without unnecessarily limiting their scope of protection at an early stage. This makes the patent future-proof against rapid developments in this technology space by enabling adaptation to the commercial opportunities as they arise,” said Schmidt.

In India, certain challenges include the “black box” problem. “The fundamental patent requirement is the sufficiency of disclosure, which require detail disclosure sufficient enough that a person skilled in the art can replicated or achieve the invention or technical advancement without undue experimentation. The quantum systems, on the other hand, are highly complex relying on complex phenomena like superposition and entanglement that are notoriously difficult to document with precision,” said Chhibber.

“Therefore, there is a trade-off in patenting these technologies,” he noted. “If the specification discloses specific details, the applicant may risk losing know-how or trade secrets to competitors. If they are too vague to protect the secrets, the patent may be rejected due to lack of sufficiency of disclosure or for being non-enabled.”

There is also the challenge of subject matter eligibility. “This revolves around the technology, which is the risk of falling into the category of ‘algorithm.’ Because quantum computing is fundamentally rooted in advanced mathematics, avoiding the ‘algorithm’ trap under Section 3(k) of the act remains the hurdle. It is often addressed by moving beyond the ‘what’ of the mathematical steps and focusing on the ‘how’ of the physical implementation. This involves drafting patent claims that emphasize the physical transformation or the system-level architecture rather than just the mathematical steps. This also includes framing the invention as a technical solution to a physical, real-world problem rather than a theoretical calculation, thus proving that the subject matter provides a ‘technical character’ sufficient to receive legal protection,” he said.  

The future of quantum computing

Singapore’s National Quantum Strategy, launched in May 2024 with S$300 million (US$235 million) in funding, provides investors with a clear signal of long-term national commitment to quantum technologies.

“Singapore’s mature IP and legal infrastructure enables research institutes, academia and companies developing quantum technologies to build defensible positions using a coordinated IP strategy that integrates patents, trade secrets, copyright and contractual protections,” Heng said. “This ensures that capital deployed into quantum computing ventures is supported by enforceable, high-value intangible assets.”

She continued: “Patent portfolios will remain a defining competitive differentiator. Strong, well-positioned quantum patents increase valuation, attract institutional capital and provide ‘freedom to operate’ in crowded markets. Companies that secure early rights – particularly in enabling hardware, algorithms and platform or core technologies – will be better positioned to influence emerging standards and capture premium market segments.”

“Overall, Singapore’s National Quantum Strategy and robust IP ecosystem give investors and stakeholders the legal certainty, risk mitigation, and scalability conditions needed to back quantum ventures with confidence and to capitalize on this rapidly evolving field,” she said.

Australia will likely see a continued and significant increase in patent filings for quantum innovations.

“Many of our clients, particularly those emerging from universities, are moving from foundational research toward more application-focused innovations targeted at specific industry verticals,” said Schmidt. “Therefore, we expect to see more cross-disciplinary innovations in the future. We also expect defence and sovereign capability considerations to play a growing role in shaping quantum innovation strategies. Increased international collaboration, which is already more prevalent in quantum than in many other technology areas, is also likely to give rise to more complex questions around IP ownership and control.”

“From an investment perspective, quantum technologies demand longer-term thinking than many other areas of deep tech. This means that future investors will be more aware of different risk profiles in quantum investments,” he explained. “As patent attorneys in the quantum sector, FB Rice develops commercial strategies and encourages the use of the patent system to support quantum innovation moving forward, given the benefits that patents can provide outside of protection. For example, increasing the value of a business, facilitating strategic partnerships, providing a foundation for negotiating mergers or acquisitions, and validation of a technology and its place in a commercial market.”

Wray, meanwhile, said that as quantum computing innovations gain commercial value, there will be an increased patent litigation and enforcement activity. “We can already see this with an increase in third-party submissions against some of our patent applications. This will be interesting from a legal perspective and will clarify legal aspects that may be unique to quantum computing innovations. For instance, if a patent claim recites ‘measuring a quantum state in a superposition,’ how can infringement be proven when measurement collapses the superposition? Clarity from a legal perspective would help us to better protect quantum computing innovations in the future,” he said.