Quantum computing patent increase is far above average

On Wednesday 25 January 2023, the European Patent Office (EPO) issued their Insight Report into quantum computing and patents. In their Report, the EPO considered quantum computing patents in general and then concentrated on three topics that they considered key in quantum computing (a) physical realisations of quantum computing; (b) quantum error correction/mitigation; and (c) quantum machine learning and artificial intelligence.

The report is very welcome at a time when the field appears to be advancing rapidly. A group of researchers in China have claimed to use a small quantum computer to calculate the prime factors of 261,980,999,226,229 by improving efficiency of Shor’s algorithm. The implications of this claim are that quantum computers are on the way to being able to break encryption widely used today in commerce. However, the claim is not substantiated at this point.

Perhaps unsurprisingly given the recent upsurge in funding and spinout companies in quantum computing in recent years, the EPO observed that the number of patent families in the general field of quantum computing was increasing both rapidly and more rapidly than in all fields of technology in general. The EPO also noted a weak and temporary upswing in the number of quantum computing patents in the early 2000s which they believed could possibly be attributed to the large number of papers at the time and the development of adiabatic quantum computing.

The number of patent families in quantum computing leading to at least one granted Chinese, European, Japanese, or US patent fluctuated from just below 70% to just above 80% for patent applications published between 1990 and 2016. While a sharp drop off can be seen for patent applications published after 2016, the EPO note this could be due to the time taken for the patent application process and the fact that these applications are still undergoing prosecution.

In terms of the specific topics, the EPO note that while the number of patent families related to physical realisations of quantum computing and quantum error correction/mitigation have fluctuated since the early 2000s, the number of patent families related to quantum machine learning and artificial intelligence has increased rapidly since 2013, suggesting this is a new and currently hot topic of interest. As one of the more challenging topics to prosecute before the EPO, it is slightly disappointing that the EPO were unable to provide information concerning the number of these applications that were granted. However, this is unsurprising since the length of time it takes to prosecute patent applications means it is likely to be a few years yet before this data becomes available. The EPO also did not provide grant information for quantum error correction/mitigation related patent families.

In relation to physical realisations of quantum computing, many years showed 100% of patent families first published in that year having at least one granted Chinese, European, Japanese or American patent. This may not be surprising given this is subject matter most patent offices consider technical and since inventors tend to know the field well and thus have a good understanding of what is novel and inventive. However, some years, such as 2014, showed much lower rates, going as low as 45%. Until around 2015/2016 this did not constitute a trend with some years seeing a dip before the rate of at least one grant returning to 100%. However, after 2015/2016 this appears to be a trend with the number of patent families with at least one granted patent dropping. As with the general quantum computing patents this drop off may be due to the time taken for prosecution.

The EPO also considered who was the applicant for patent applications related to quantum computing and provide detailed breakdowns for anyone interested. However, in general, the EPO found that most applications had only a single applicant with the biggest applicants being US and Japanese companies. However, they found that one tenth of patent families that had an EP (European) applicant had joint applicants and that where joint applicants were present, the joint applicants tended to be on the same continent. As well as being due to geographical proximity, this may be explainable by government funding models (such as EU and the UK funding models) which tend to encourage collaboration within a jurisdiction or region.

Overall, the EPO Insight Report shows that quantum computing is a rapidly developing field of technology and that the number of patent applications in the field was increasing, with the majority of applicants being companies. In addition, the Report shows that while physical realisations of quantum computers and quantum error correction/mitigation remain key fields, quantum machine learning and artificial intelligence is a hot topic right now. It will be interesting to see in future how this shift impacts the number of quantum computing patent families that result in at least one granted patent.

The report does not mention case law. At present there is little existing case law to guide applicants in the field and no dedicated section of the Examination Guidelines. However, it is expected that disputes and oppositions will be inevitable since this is a nascent field.