Quantum Computing And Intellectual Property Law In The United States: Emerging Challenges And Strategic Considerations

Abstract

Quantum computing represents one of the most transformative technological developments of the twenty-first century, promising computational capabilities that dwarf those of classical systems. As commercial quantum systems transition from laboratory curiosities to commercially viable products, the intellectual property (IP) landscape surrounding this technology has grown increasingly complex. This article examines the principal IP issues arising in the United States in connection with quantum computing, with particular focus on patent eligibility, the patent prosecution landscape, trade secret protection, copyright, export controls, and the emerging standard setting environment. There are no quantum-specific IP laws. As with other technologies, existing IP laws will apply. This paper addresses how IP protection for quantum computing presents some unique challenges, issues and strategic considerations.

I. Introduction

Quantum computing exploits the principles of quantum mechanics — superposition, entanglement, and interference — to perform certain computations at speeds and scales fundamentally inaccessible to classical binary computers. The implications for fields ranging from cryptography and drug discovery to financial modeling and artificial intelligence are profound. The global quantum computing market is projected to reach tens of billions of dollars within the next decade.

The significance of quantum computing to the economy and national security is reinforced by the U.S. Government. Back in 2018, Congress passed the National Quantum Initiative Act, to provide for a coordinated Federal program to accelerate quantum research and development for the economic and national security of the United States. In May 2026, the U.S. Department of Commerce announced a $2.013 billion investment under the CHIPS and Science Act to strengthen the domestic quantum computing ecosystem through direct equity stakes in nine key quantum companies. These quantum investments have advanced and will further advance research to solve technical issues impeding more rapid commercial development.

All of this has led to a surge in technical breakthroughs and a concomitant increase in quantum-related IP activity. Various sources report consistent double-digit growth in the number of quantum computing-related patent filings throughout the last decade. As with other ground-breaking technologies, there are no new laws regarding protection of quantum inventions. However, the legal frameworks governing IP protection for quantum technologies present some new twists.

This article addresses some quantum-related issues with the patent eligibility doctrine, trade secret law, copyright, and export control regimes, each of which present distinct and unresolved questions when applied to quantum computing innovations. Lawyers and IP strategists advising quantum companies must navigate these uncertainties with care.

II. Patent Law: Eligibility, Prosecution, and Enforcement

A. The Patent Eligibility Problem Under 35 U.S.C. § 101

The most immediate and consequential IP challenge facing quantum computing innovators in the United States is the doctrine of patent-eligible subject matter under 35 U.S.C. § 101. Under the Supreme Court's two-step framework established in Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014), and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. 66 (2012), claims directed to abstract ideas, laws of nature, or natural phenomena are patent ineligible unless they incorporate an "inventive concept" that transforms the claim into something significantly more than the ineligible concept itself. Many of the principles of quantum mechanics include physical phenomena and heavy mathematics.

Some quantum computing innovations sit uncomfortably within this framework for several reasons. First, many quantum algorithms — even those offering dramatically superior performance over classical equivalents — may be characterized by patent examiners and courts as abstract mathematical methods. Quantum algorithms such as Shor's algorithm (for integer factorization) and Grover's algorithm (for database search) are, at their core, mathematical procedures. Under Alice, a claim that merely applies such an algorithm to a general-purpose quantum computer may fail to satisfy § 101 without a meaningful transformation or a claim to a specific, concrete implementation.

Some quantum computing innovations sit uncomfortably within this framework for several reasons. First, many quantum algorithms — even those offering dramatically superior performance over classical equivalents — may be characterized by patent examiners and courts as abstract mathematical methods. Quantum algorithms such as Shor's algorithm (for integer factorization) and Grover's algorithm (for database search) are, at their core, mathematical procedures. Under Alice, a claim that merely applies such an algorithm to a general-purpose quantum computer may fail to satisfy § 101 without a meaningful transformation or a claim to a specific, concrete implementation.

Second, the hardware-software boundary in quantum computing can be less clear than in classical computing. These factors require careful consideration of what aspects of a quantum invention are patentable and necessitate sufficient technical written description and careful claim drafting.

However, various decisions from the USPTO PTAB have provided some helpful guidance. I have previously covered these inPatenting the Quantum Future – Practical Tips Based on PTAB Decisions.

B. USPTO Guidelines and Examination Practice 

Many of the issues are not unique to quantum. The USPTO has provided guidance through a series of examination guidelines, most recently the 2019 Revised Guidance on § 101 and subsequent updates. Under this guidance, examiners are instructed to identify whether a claim is directed to one of the enumerated judicial exceptions (mathematical concepts, methods of organizing human activity, and mental processes) and, if so, whether the claim as a whole integrates the exception into a practical application.

For quantum computing patent applicants, the "practical application" prong has become critical. Claim drafters have increasingly focused on:

• Specific hardware implementations: Claiming specific configurations of qubits, specific error correction circuits, or specific qubit architectures (e.g., superconducting qubits, trapped ions, photonic qubits) rather than algorithmic processes in the abstract;
• Technical improvements: Framing quantum innovations as technical improvements to classical computing limitations — for instance, characterizing a quantum error correction method as an improvement to the reliability and stability of quantum hardware rather than as a mathematical formula;
• Functional claim language tied to structure: Leveraging the physical nature of quantum hardware to anchor algorithmic claims to concrete physical structure.

Despite these strategies, the USPTO's application of § 101 to quantum computing patents remains inconsistent, and uncertainty persists about which claim formulations will survive examination and subsequent litigation.

C. The Prior Art and Obviousness Landscape

Beyond § 101, quantum computing patent applicants face substantial challenges under 35 U.S.C. §§ 102 and 103. These are the parts of the patent statutes that require an invention to be novel and not obvious. The quantum field has a rich body of academic prior art dating to the foundational work of Richard Feynman, David Deutsch, Peter Shor, and Lov Grover in the 1980s and 1990s. Much core theoretical work is decades old and exists in the public domain, impacting the scope of protectable subject matter at the algorithmic level. 

Furthermore, the pace of quantum computing research is extraordinarily rapid. The time between academic publication and commercial patent filing is often short, meaning that patent examiners and applicants alike must conduct sophisticated prior art searches across a body of literature that spans theoretical physics, computer science, electrical engineering, and materials science. The risk of inadvertent anticipation (lack of novelty) or obviousness rejections is accordingly high.

For established quantum computing companies, freedom-to-operate analyses have become an essential component of product development. The quantum patent landscape is increasingly crowded, with some industry leaders holding thousands of quantum related patents, and litigation risk — or the risk of being forced into costly licensing negotiations — has become a material business concern.

D. Standard-Essential Patents and Quantum Communications

A related concern arises in the context of quantum key distribution (QKD) and quantum communication networks, where standardization efforts are underway through organizations such as the International Telecommunication Union (ITU) and the European Telecommunications Standards Institute (ETSI). As standards are developed, questions about standard-essential patents (SEPs) and fair, reasonable, and non-discriminatory (FRAND) licensing commitments will inevitably arise.

The US legal framework for FRAND licensing, developed primarily through Federal Circuit decisions and district court litigation involving wireless communication standards, will need to be adapted to the quantum context. Key unresolved issues include how to define the relevant patent pool, how to assess the essentiality of quantum communication patents, and how FRAND royalty rates should be calculated when quantum communication systems displace classical encrypted channels.

III. Trade Secret Protection for Quantum Technology

Given the difficulties of patent protection for quantum algorithms, many quantum computing companies have turned to trade secret law as an alternative or complementary strategy. The Defend Trade Secrets Act (DTSA) of 2016, which provides a federal civil cause of action for trade secret misappropriation, is the primary federal vehicle for this protection. State laws, most of which are based on the Uniform Trade Secrets Act (UTSA), provide additional remedies.

Trade secret protection is particularly attractive for quantum computing for several reasons:

• Calibration and control parameters: The precise parameters used to control qubit systems — microwave pulse sequences, laser calibration data, cryogenic system specifications — are highly valuable, difficult to reverse-engineer, and may be protected indefinitely so long as reasonable measures to maintain secrecy are in place;
• Error correction codes: Proprietary quantum error correction methods, particularly those achieving below-threshold error rates on specific hardware, represent significant competitive advantages that companies may prefer to keep secret rather than disclose through patent filings;
• Quantum circuit compilation: The software methods used to translate high-level quantum programs into optimized gate sequences for specific hardware are intensely proprietary and form a significant part of the "moat" around leading quantum platforms.

However, trade secret protection carries risks in the quantum context. Quantum technology is subject to rapid independent development; the risk of independent development and public disclosure is high. For example, employee mobility in the quantum computing sector — where there is a well-documented shortage of qualified engineers and physicists — creates persistent misappropriation risk and has already generated DTSA litigation.

Many of these issues are similar, in some respects, to those with AI. For an overview of trade secret issues with AI, see Can You Keep (an AI) Secret? The Role of Trade Secrets in IP Protection Strategies for AI.

Quantum computing companies must implement robust trade secret protection programs, including carefully drafted non-disclosure agreements, access controls, exit interview protocols, and clear identification of trade secret information. The adequacy of these measures will be scrutinized in any subsequent DTSA or other trade secret litigation.

IV. Copyright and Quantum Software

Quantum computing software — including quantum programming languages, compilers, and circuit simulation tools — is, in principle, subject to copyright protection under the Copyright Act of 1976. Copyright protects original expression but not the underlying ideas, algorithms, or mathematical principles. For quantum software, this means that the specific source code of a quantum programming framework is protectable, but the quantum algorithms implemented through that code are not.

algorithms, or mathematical principles. For quantum software, this means that the specific source code of a quantum programming framework is protectable, but the quantum algorithms implemented through that code are not.

The Supreme Court's decision in Google LLC v. Oracle America, Inc., 593 U.S. 1 (2021), which addressed the copyrightability of application programming interfaces (APIs), is directly relevant to quantum software. The Court's broad fair use holding, though limited in its facts to the Android/Java dispute, suggests that re-implementations of quantum programming interfaces by competing platforms may be defensible on fair use grounds, particularly where the re-implementation promotes interoperability. This has significant implications for the emerging ecosystem of quantum software development kits and cloud-based quantum platforms.

Open-source licensing also plays a significant role in the quantum software ecosystem. Some leading quantum companies have released major software frameworks under open-source licenses. The decision to open-source quantum software reflects a deliberate IP strategy: by establishing a dominant open ecosystem, these companies seek to accelerate adoption of their hardware platforms while retaining proprietary advantages at the hardware and services layers. Open source strategies such as these can be successful, but companies must carefully consider the interaction between open-source license obligations and proprietary IP claims, particularly where open-source contributions incorporate or depend upon patented methods.

V. Export Controls and National Security Considerations

Quantum computing technology has profound national security implications, particularly in the context of cryptography. A sufficiently powerful quantum computer running Shor's algorithm would be capable of breaking widely used public-key cryptographic systems, including RSA and elliptic-curve cryptography. This has prompted significant U.S. government attention to the export control implications of quantum computing technology.

The Export Administration Regulations (EAR), administered by the Bureau of Industry and Security (BIS) within the Department of Commerce, control the export of dual-use technologies, including certain quantum computing systems and components. Quantum computing hardware and related technical data may be subject to Export Control Classification Numbers (ECCNs) requiring licenses for export to certain countries, particularly China and Russia. BIS has in recent years added quantum computing-related items to the Commerce Control List (CCL), and further controls are anticipated.

For IP attorneys, export controls intersect with IP strategy in several important ways. First, filing a U.S. patent application is itself a disclosure that could constitute a controlled export if the subject matter is classified or otherwise controlled; the USPTO's foreign filing license requirement under 35 U.S.C. § 184 must be carefully observed. Second, licensing quantum IP to foreign entities may itself constitute a controlled transaction requiring BIS authorization. Third, the disclosure of quantum know-how to foreign nationals — even within the United States — may constitute a "deemed export" requiring a license.

The National Quantum Initiative Act of 2018 and subsequent federal quantum investment programs (including CHIPS and Science Act provisions) also include provisions designed to protect federally funded quantum research from foreign exploitation, adding another layer of complexity for quantum companies receiving federal funding.

VI. Post-Quantum Cryptography and IP Implications

In parallel with the development of quantum computers, the cryptographic community has been engaged in a multi-year effort to develop post-quantum cryptographic (PQC) algorithms — classical algorithms that are believed to be resistant to attacks by quantum computers. The National Institute of Standards and Technology (NIST) finalized its first set of PQC standards in 2024, including algorithms based on lattice problems (CRYSTALS-Kyber, CRYSTALS-Dilithium) and hash functions (SPHINCS+). For more on the NIST PQC work, see here.

The IP landscape surrounding PQC standards raises issues closely analogous to those that arose in the context of 4G and 5G wireless standards. Several of the NIST-selected PQC algorithms are covered, or potentially covered, by patents. NIST's process included a call for patent disclosures from submitters, but the completeness and enforceability of those disclosures remain to be tested. As organizations across government and industry begin mandating PQC migration — a process that will take years and involve enormous procurement — the question of whether patent holders can assert SEP-like claims against implementers of the NIST standards will become a significant source of litigation and licensing activity. 

VII. Ownership and Inventorship in the Age of Quantum AI

A further emerging issue concerns the interaction between quantum computing and artificial intelligence in the context of inventorship. Quantum machine learning — the use of quantum algorithms to accelerate AI training and inference — is an active area of research and development. As AI systems play an increasing role in the identification and design of quantum innovations (for example, AI assisted discovery of new qubit architectures or quantum error correction codes), the question of whether AI-generated or AI-assisted inventions are patentable in the United States becomes directly relevant.

The Federal Circuit's decision in Thaler v. Vidal, 43 F.4th 1207 (Fed. Cir. 2022), confirmed that under current US law, only natural persons can be inventors; AI systems cannot hold inventorship. However, in hybrid human-AI invention scenarios — which are likely to arise often in quantum computing research — the determination of which human contributors qualify as inventors under 35 U.S.C. § 116 will require careful analysis. In February 2024, the USPTO issued guidance on inventorship involving AI-assisted inventions. By the end of 2025, it rescinded that guidance and provided new guidance. For a summary of the guidance, see USPTO’s Revised Inventorship Guidance for AI-Assisted Inventions: What Changed, What Stayed, and What Practitioners Should Do Now.

VIII. Strategic Recommendations

In light of the foregoing, the following strategic recommendations are offered to quantum computing companies:

1. Build a layered IP portfolio: Pursue a comprehensive patent protection program, considering the range of quantum inventions that may be patentable, including hardware innovations, specific circuit implementations, and technical improvements while supplementing with robust trade secret and copyright protection where applicable;
2. Draft patent claims with § 101 in mind from the outset: Involve patent counsel early in the R&D process to ensure that claim drafting focuses on concrete technical improvements and specific hardware implementations rather than abstract algorithmic formulations;
3. Conduct regular freedom-to-operate analyses: The quantum patent landscape is densely populated and rapidly evolving; freedom-to-operate analyses should be a standard component of product development cycles;
4. Implement comprehensive trade secret programs: Given the difficulty of patent protection for certain aspects of quantum technology, a rigorous trade secret protection program — encompassing NDAs, access controls, and employee protocols — is essential;
5. Monitor export control developments closely: BIS quantum computing controls are likely to become more comprehensive; compliance programs should include regular audits of the export control status of quantum hardware, software, and technical data, as well as deemed-export screening for foreign national employees;
6. Establish clear inventorship documentation practices: In research environments involving AI-assisted design, document the specific contributions of human inventors carefully and contemporaneously to support defensible inventorship determinations.

IX. Conclusion

Quantum computing presents a set of IP challenges that test the limits of existing US law. Patent eligibility doctrine, calibrated for the classical software era, struggles with the hybrid physical-mathematical nature of quantum algorithms and circuits. Trade secret law offers important complementary protection but carries its own risks in a field characterized by rapid independent development and intense talent competition. Export controls are tightening and will require increasing compliance attention. And the emergence of PQC standards creates a new arena for SEP-like disputes.

The commercial stakes are enormous. Quantum computing has the potential to reshape industries, national security, and the global economy. As typically happens with significant innovative technologies, patent and other IP wars emerge once commercialization becomes significant. Building a patent and IP portfolio now will help protect your company once those IP wars emerge.