Quantum Computing is at a crossroads – protection is needed to encourage innovation.

Recent technical advances highlight the potential of quantum technologies in several domains including simulation, sensing and metrology, computation, and communication. This includes achieving quantum supremacy using programmable processors based on superconducting qubits.Footnote1 The potential applications of quantum technologies range from (1) simulating quantum systems to enhance our fundamental understanding of nature and its applications (e.g. modelling chemical processes in drug development) to (2) achieving unprecedented sensitivity, resolution and accuracy in measurement through quantum sensing and metrology, (3) solving computational problems that are beyond the reach of classical computing by using quantum computers to deploy quantum algorithms, and (4) developing a new generation of secure communication systems.Footnote2

These advances are of interest to academia, industry and governmentsFootnote3 due to the implications for (1) basic science, (2) a broad cross-section of industry sectors ranging from computing and IT to pharma, and (3) governments concerned about the ultimate national security implications of quantum technologies. Technology-based innovation is typically driven by the synergy between academia, industry and market forces such as the intensity of competition, new market entrants, availability of substitute solutions, and the bargaining power of customers and suppliers. Governments also play a key role since they set innovation incentives and regulatory frameworks. Additionally, it is often the case that governments are a core market participant since they may also be an end customer for new technological solutions, especially when these have applications in defence and national security.

Governments can provide push and pull incentives. In the context of quantum technologies, examples of push incentives include (1) the grants to fund the basic scientific research that resulted in the first quantum revolution (i.e. the development of the theory of quantum mechanics to understand the principles and rules that govern physical reality at a fundamental particle level), and (2) technology transfer grants designed to take these quantum mechanical principles and use them to develop new quantum technologies as part of the so-called second quantum revolutionFootnote4 such as the European quantum technologies flagship programme.Footnote5

The goal of government push incentives is typically to provide funding in the form of grants to accelerate transitions from technology readiness level (TRL) 3 (e.g. experimental proof of concept stage) to TRL 6–7 (e.g. pre-competitive technology prototypes demonstrated in an industrially relevant environment). Pull incentives such as patent protection are designed to incentivise disclosure of novel inventions in exchange for timebound intellectual property rights. Once the pre-competitive technology is sufficiently de-risked (e.g. at the TRL 7 stage), intellectual property rights (IPRs) and market incentives are typically sufficient to enable transitions from TRL 7 to commercially available products (TRL 8–9).

Anticipating the potential implications of quantum technologies in real-world products, commentators from academia, government and think tanks have started to raise concerns, propose governance and regulatory strategies, and suggest policy recommendations focused on quantum technologies. These proposals are often directed to incentives (e.g. push incentives and IPRs), standardisation (e.g. ISO/IEC/IEEE) and regulation (e.g. technology governance).Footnote6 Such academic contributions and proposals can be better judged by examining them in conjunction with empirical data to facilitate evidence-based policy decisions. For instance, previous research has raised the concern of IP overprotection in the field of quantum technology and proposed reforms to the patent system.Footnote7 But, is there sufficient real-world evidence that indicates that there is overprotection anno 2022?

What has been the patenting trend over the last 20 years for quantum technologies? Which countries and organisations are leading the quantum patenting activity? What claim formulations are being used to protect these inventions? In what jurisdictions are they being protected? Without more evidence-based IP research to address these types of questions, it is perilous for legal scholars and policymakers to presume they can propose reforms to existing IP and regulatory regimes with reasonable chances of achieving desirable social outcomes. This is especially the case in early-stage deep tech fields such as quantum technologies that require significant high-risk R&D investments and overcoming substantial scientific and engineering challenges.Footnote8

Perceived under-protection is traditionally understood to cause a lack of economic incentives to innovate in nascent technical fields. In the absence of viable alternatives, it is generally assumed that patent rights, as well as other forms of IPRs, are needed to attract the significant investment required to fund the capital-intensive R&D efforts necessary to encourage innovation and dissemination in high-risk technical fields such as quantum computing. That said, the overprotection of technologies and information may also cause market barriers and hamper healthy competition and sector and industry-specific open innovation.

Patents are an indicator of the pace and dynamics of innovation at the invention stage. Consequently, empirical studies looking at the actual patenting activity can provide valuable evidence to help assess policy proposals related to IPRs, innovation, and regulation in light of patent office data. However, the few patent studies available are either not peer-reviewed,Footnote9 focus on a narrow patent reviewFootnote10 or methodological contribution,Footnote11 or not recent.Footnote12 In this paper, we report the results of a study designed to map the patent landscape of quantum technologies. In particular, we evaluate the real-world patenting trends over the last 20 years to determine: (1) the growth of quantum technology patents, (2) the technology breakdown and classification of patenting activity, (3) the choice of priority patent office, (4) the types of patent claims and strategies, (5) the subject matter of recently awarded patents, (6) the top patent owners and their characteristics, (7) the dominant patent portfolios in terms of forward citations, and (8) the geographical distribution of this patent activity. These results enable us to critically examine previously published qualitative findings on potential patent overprotection of applied quantum technologies at the current state of the art. Using our landscape results we critically examine if IP overprotection, and in particular patent protection, is posing a problem in the technical field of quantum technologies. Additionally, we analyse the innovation and policy implications of these results in the broader context of quantum innovation initiatives, governance of quantum technologies, and market competition dynamics.