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The number of patents for quantum computing inventions is rapidly increasing as the industry increasingly moves towards greater commercialization. Patenting quantum computing inventions raises several recurring legal issues, many of which mirror issues with patents involving software and algorithms generally. However, the issues are sharpened by the field's heavy reliance on math and physics. Companies that rush to file patent applications in this space often overlook some of these critical issues.
To develop valuable quantum patents, applicants must ensure they can recite patent eligible subject matter. The claims must be drafted with sufficient care to ensure the Examiner does not interpret the claims as an abstract idea. The patentability of quantum algorithms follows the same fundamental criteria as classical software patents, but with unique quantum-specific considerations. An algorithm per se (e.g., a purely abstract mathematical method) is not patentable. However, when tied to specific technical implementations that yield tangible technical effects, quantum algorithms can receive patent protection. For example, if a quantum algorithm improves the functioning of a quantum computer or achieves a specific practical outcome (e.g., enhanced cryptographic security or more efficient drug discovery simulations) it may qualify for patent protection. The specification must contain sufficient details explaining not just what the invention does, but how it does it. Also, the specification must have sufficient detail to enable the full scope of the claim.
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