The Google Quantum AI team recently announced a significant breakthrough with their quantum chip “Willow” in which the logical qubit’s error rate has dropped sharply. Willow can perform calculations in five minutes that would take the world’s best supercomputers 10 septillion (10,000,000,000,000,000,000,000,000) years to calculate.
The Willow chip is the latest step in the challenge to build a practical and useful quantum computer. The fundamental building block of a quantum computer is the qubit, a simple unit of quantum information. However, a qubit is relatively unstable and sensitive to disturbance from the environment, which causes errors. These errors can spread when the qubits are grouped together within a quantum circuit. Quantum error correction was proposed in the 1990s as a viable path towards the goal of building a large-scale quantum computer, but the process of quantum error correction is itself was seen as a difficult and delicate process. To even measure the state of a qubit would involve observing it which would then irreversibly disturb it. This latest announcement from Google shows potential to solve this problem.
The field of quantum computing is one of the fastest growing technology sectors in the world with the established players, such as Google, along with IBM, Amazon, and Microsoft, competing with a surge in VC investment and quantum focused start-ups, such as Riverlane and PsiQuantum. In addition, there have been large investments into government backed quantum labs and research facilities across the world.
Patenting Quantum Computers
The progress in quantum computers has been matched by a rise in patent filings for multiple aspects of the technology and in a broad range of fields such as drug discovery, material science, and AI. Now is the perfect time to pursue patent protection for quantum technologies, with foundational patent applications for the first commercially successful quantum computers having the potential to be extremely valuable in the future. However, there are several challenges you need to consider and below we discuss the key points you need to know to build strong protection in Europe.
File now or wait?
A patent term is 20 years from the date of filing an application. It is possible that the patent may expire before its technology becomes commercially relevant. Also, with the rapid pace of development, the technology described in the patent may be obsolete within a few years.
However, with the industry in an early growth stage there has never been a better time to apply for patent protection and the patent applications filed now could be extremely valuable in future.
Excluded subject matter
In principle, a European patent can be granted for any invention, in all fields of technology, if it has not been described anywhere before (i.e., it is new), if it is not an obvious development of known technology (i.e., it involves an inventive step) and it is susceptible of industrial application.
In practice, the European Patent Convention (EPC) excludes certain subject-matter from patentability, including: “discoveries, scientific theories and mathematical methods” along with “programs for computers;”.
Quantum Computing is fundamentally driven by mathematics and the principles of quantum mechanics including quantum logic states, superposition, and quantum entanglement. However, although this pure subject matter cannot be patented, how the quantum technology is implemented in the real world can be patented if it can be shown to have a technical effect.
Technical effect
In quantum computing a technical effect could be demonstrated in improvements to the physical hardware of the computers, such as physical implementations of the quantum logic gates, how the circuits achieve and occupy energy states, and the means to alter and register the state of a qubit. Therefore, it is very important to describe as fully as possible how the invention can be applied to the physical workings of the quantum computer to maximise the potential for a technical effect to be clearly demonstrated. For example, it is important to describe working implementations on physical qubits and circuits rather than purely how they could theoretically work.
When considering improvements to the software running on the computers, the EPO has an established approach for assessing computer-implemented inventions. The EPO will only look at the features of the invention which contribute to providing a technical effect for the purposes of assessing whether there is an inventive step.
In this respect, it helps to think about the purpose of the invention and then consider if that purpose provides a technical effect. For example, if the purpose of the invention is to improve workings of the quantum computer or to improve a technical system controlled by that quantum computer, then we can argue that a technical effect is provided. However, if the purpose of the invention is to provide a better computer program, such as a program that requires fewer steps to compute, there is no technical effect beyond the computer program itself, and patent protection looks less likely to be obtained.
Sufficient disclosure
Essentially, a patent is a right to stop others exploiting your invention, which is given in return for you explaining to the world exactly how your invention works and with the aim of further understanding a technology. Therefore, a requirement for patentability is a description of the invention that is sufficient for a person skilled in that field of technology to then put that invention into effect.
Quantum computing is still emerging and developing as a technology. It is important to file patent applications early, but this must be in balance with need for the technology to be fully described.
The EPO also uses “common general knowledge” in a field of technology to help assess patentability, but quantum computing is still in its infancy when compared to established technology such as automotives and pharmaceuticals. When drafting and prosecuting quantum computing inventions it is difficult to know exactly what that common general knowledge encompasses. It is therefore critical to be clear on the precise definitions of terms and expressions used when describing your invention. You should use simple and clear explanation of both the principals and the practical aspects of your invention from the start to enable meaningful engagement with patent examiners. This simple but comprehensive approach will demonstrate exactly how the technical effect is achieved and should smooth the way to a granted patent.
How we can help
Along with a full description of the invention, a patent application must contain a set of statements (claims) that legally define the scope of protection given to that invention. To ensure a good scope of protection the relationship between you and your patent attorney is arguably more important in quantum computing inventions than for other subject matter because you will need to work together to clearly define complex technology.
At Lewis Silkin we have a comprehensive IP department, including patent attorneys with strong physics backgrounds and a wealth of experience to help you. Get in touch if you want to discuss further.