This article is written by Priyam Pratik, Faculty of Law, University of Allahabad.
Keywords: Quantum Computing, Patent Protection, Intellectual Property, Infringement, Prior Art.
I. Introduction
Quantum computing has moved from the pages of physics journals to the boardrooms of the world’s largest technology companies faster than most legal scholars expected. When Google announced in 2019 that its Sycamore processor had completed a specific computation in roughly 200 seconds that would, by their estimate, take a classical supercomputer thousands of years, it was no longer possible to treat quantum technology as a distant concern. The race to build practical quantum machines has now generated one of the most active patent filing environments in the history of technology, with filings from IBM, Google, Intel, IonQ, D-Wave, and dozens of well-funded start-ups growing steeply year on year. Yet the law is struggling to keep up. Patent doctrine built around classical inventions is being asked to govern a technology that operates on superposition and entanglement. Questions about patentability, infringement detection, and appropriate remedies are live and largely unresolved. This article maps where things stand, drawing on key case law and doctrinal frameworks.
II. Case Laws
Alice Corp. v. CLS Bank International (2014)
Alice is the case quantum patent practitioners lose sleep over. The Supreme Court held that a computer-implemented financial method was patent-ineligible for merely applying an abstract idea on a generic computer. The two-step Mayo/Alice test asks whether a claim is directed to an abstract idea and, if so, whether it adds an inventive concept sufficient to transform it into something patentable. Quantum algorithms, being mathematical at their core, sit uncomfortably here. Practitioners now draft claims anchored tightly to a physical quantum substrate, specifying qubit topology and gate sequences in concrete detail, though the strategy remains vulnerable to judicial interpretation.
Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012)
Mayo established that a method reciting nothing more than a naturally occurring relationship is patent-ineligible. This bears directly on quantum error correction, where claims risk being read as merely restating mathematical relationships among qubit states. Claims must go further and specify a concrete physical implementation rather than the underlying mathematical insight alone.
Diehr remains the doctrinal anchor for the argument that including a mathematical formula does not make a claim ineligible. The Supreme Court upheld a rubber-curing process that used a computer to run the Arrhenius equation, reasoning the claim as a whole was directed to a practical industrial process. For quantum computing, the lesson is clear: anchor the claim at the level of the whole physical process, not the underlying mathematics.
Ferid Allani v. Union of India (2019)
The Delhi High Court’s decision in Ferid Allani v. Union of India (2019) marked a significant development in the interpretation of Section 3(k) of the Patents Act, 1970, which excludes “computer programmes per se” from patentability. The Court rejected an overly restrictive interpretation of Section 3(k), holding that inventions involving computer programmes are not automatically excluded if they demonstrate a technical effect or technical contribution. The Court observed that modern technologies such as artificial intelligence, blockchain, and digital communication frequently rely on software but may nevertheless qualify for patent protection when they produce a tangible technical advancement.
Although the case did not concern quantum computing, its reasoning is highly relevant because quantum software and algorithms are often implemented through specialised hardware to achieve measurable technical outcomes. The decision therefore supports the argument that quantum-related inventions should be assessed on the basis of their overall technical contribution rather than being rejected merely because they involve computational or mathematical processes.
The Computer Related Inventions (CRI) Guidelines, 2017, issued by the Indian Patent Office, adopt a similar approach by requiring patent examiners to assess the invention as a whole rather than rejecting claims merely because they involve software or algorithms. The Guidelines emphasise that claims demonstrating a technical effect or technical advancement may satisfy the requirements of patentability, provided they also meet the statutory tests of novelty, inventive step, and industrial applicability. Although the Guidelines do not specifically address quantum computing, they offer the closest available examination framework for evaluating quantum software and hardware inventions in India.
Berkheimer v. HP Inc. (Fed. Cir. 2018)
The Federal Circuit held that whether a claimed element is well-understood, routine, and conventional under Alice step two is a question of fact, not law. This is welcome news for quantum patent holders: a challenger cannot defeat a quantum patent at the pleading stage by mere assertion. Expert evidence is required, and in a field advancing as rapidly as quantum computing, very little is truly routine.
III. Infringement, Liability, and Judgments
Proving infringement in the quantum domain is genuinely hard. Under 35 U.S.C. § 271, infringement occurs when a party makes, uses, sells, or offers to sell a patented invention without authorisation. The difficulty is that a quantum processor’s internal state cannot be observed during computation without collapsing it. Patent holders must therefore rely on structural hardware analysis, discovery documentation, expert testimony, and the doctrine of equivalents, without any quantum-specific evidentiary framework.
Cloud-based quantum services add further complexity. When a user runs a patented algorithm on IBM’s or Google’s quantum cloud platform, it is unclear whether the provider, the user, or both are liable. A provider with knowledge of the relevant patent could face induced infringement liability; the user could face direct liability. No binding precedent has resolved this in the quantum context.
On remedies, courts since eBay have required plaintiffs to demonstrate irreparable harm and inadequacy of monetary damages before injunctive relief is granted. In a nascent market where infringers are often also potential partners, that bar may frequently not be met. Damages will be fiercely contested too: applying the Georgia-Pacific reasonable royalty factors to a market without mature comparable licences, where marginal improvements in qubit fidelity carry enormous competitive value, will challenge courts and experts alike.
IV. Conclusion
Patent protection for quantum computing innovations sits at the intersection of some of the most contested doctrine in intellectual property law and some of the most rapidly advancing science of our era. The frameworks we have, Alice, Mayo, Diehr, and the Federal Circuit’s evolving case law, provide a starting point but not a complete answer. Claim drafting strategy, particularly the practice of anchoring algorithm claims firmly in a physical quantum implementation rather than in abstract mathematics, remains the most reliable tool available to practitioners today.
The Indian position reflects a similar trajectory. Following Ferid Allani, the emphasis has shifted away from a rigid exclusion of software-based inventions towards evaluating whether an invention demonstrates a genuine technical effect or technical contribution. This approach is particularly relevant for quantum computing, where innovations typically combine specialised hardware, control systems, and software into a unified technological process rather than existing as abstract mathematical concepts alone.
Internationally, the picture is fragmented across jurisdictions. Convergent jurisprudence or supplementary international instruments will eventually be needed, and patent offices should develop quantum-specific examination guidelines rather than relying on classical software patent analogies. Equally important is the broader policy balance: patent thickets should not delay access to a technology with the potential to reshape cryptography, medicine, and logistics for the benefit of society at large.
There is also a broader policy question worth raising. Quantum computing has the potential to reshape cryptography, pharmaceuticals, logistics, and artificial intelligence in ways that could benefit enormous numbers of people. Patent thickets, licensing bottlenecks, and aggressive exclusivity strategies could delay or concentrate those benefits. The field would be well served by thoughtful use of patent pools, open-source quantum software ecosystems, and, where appropriate, compulsory licensing frameworks. Getting the balance right between incentivising investment and preserving access to a truly transformative technology is one of the defining intellectual property challenges of the coming decade.
V. Frequently Asked Questions
1. Are quantum algorithms patentable in India?
India’s Patent Act, 1970 excludes mathematical methods and computer programs per se from patentability under Section 3(k). However, a quantum algorithm that produces a demonstrable technical effect when implemented on specific quantum hardware may still be protectable if the claim is framed at the level of the technical process rather than the algorithm itself. This approach is broadly consistent with the Delhi High Court’s decision in Ferid Allani v. Union of India, which recognised that computer-related inventions demonstrating a technical effect or technical contribution should not be rejected solely because they involve software. Although no Indian court has yet considered a quantum computing patent specifically, Ferid Allani provides the closest judicial guidance currently available. The landscape remains unsettled, and Indian courts and the Patent Office have yet to rule directly on a quantum computing claim.
2. How is infringement detected when quantum operations cannot be observed?
Direct observation is physically impossible. Patent holders rely on structural analysis of hardware specifications, expert testimony, and the doctrine of equivalents, arguing the accused device performs substantially the same function in substantially the same way to reach substantially the same result.
3. Does publishing research before filing destroy novelty?
Yes. In most jurisdictions, public disclosure before filing can destroy novelty unless protected by a statutory grace period. India generally does not provide a broad grace period, so applicants should ordinarily file before publication.
4. Can cloud quantum providers be held liable for infringement?
Potentially yes, on an induced or contributory infringement theory, if the provider has knowledge of the relevant patent and continues to offer the infringing service. Direct liability would typically fall on the user running the patented algorithm. No binding precedent has yet resolved this question specifically for cloud quantum services, making it one of the most commercially significant open issues in the field.
