INTRODUCTION

Quantum Computing is one of the fastest growing technologies in the current era. Quantum Computers can be employed for addressing mathematical challenges and tackling computationally demanding problems, which would be very difficult for a simple computer to do. To foresee the advancement in this field, robust legal framework for its IP protection is required. However, under the current scheme of patent protectability under The Patent Act, 1970, quantum computing algorithms in itself would not be a patentable subject as it can be classified as ‘computer program’ per se or ‘algorithm’ , still their application to solve specific technical problems could be deemed patent-eligible.

DEMYSTIFYING QUANTUM COMPUTING

Quantum Computing is simply based on the principle of quantum mechanics. The computing power of such computers are drastically higher than traditional binary computers. This allows such computer to do tasks which requires heavy computing power or very high-speed computing needs. With the integration of AI, the potential of quantum computers has increased significantly. This integration with AI algorithms with quantum algorithms has the capacity to bring about a revolutionary impact on various fields such as bioengineering, including the development of synthetic cells, and nano-engineering.

PATENT AND QUANTUM COMPUTING

Before we delve into the intricacies of patentability of quantum computing, it is imperative to highlight that quantum computer consists of various components and they are subject to various intellectual property (IP) protections, including chip rights, patents, copyrights, trade secrets, design rights, and trademarks. However, in this article, we are only going to discuss the product or process related to quantum computer which are subject matter of patent protection.

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In the context of quantum computing, various components such as processors, qubits, quantum gates and etc. can be eligible for patent protection. However, it must be noted that under the scheme of Patents Act, 1970, quantum computing algorithms in itself would not be considered as a patentable subject as it cannot be classified as ‘computer program per se or algorithms’. It can only be considered as patentable subject only it if passes the test of ‘technical effect’ as brought in India by the case of Ferid Allani (applicant) v/s Assistant Controller of Patents .

In India currently there is no specific legislation dealing with the subject matter of quantum computer. However, India is still taking various initiatives in this field. Initiatives such as ‘Quantum-Enabled Science & Technology (QuEST)’ program , the ‘National Mission for Quantum Technologies and Applications (NM-QTA)’ , the establishment of the Quantum Communication Lab, and the development of a Quantum Key Distribution (QKD) solution reflect India's commitment to becoming a global hub for quantum technology.

Despite various endeavours taken by the Indian government to enhance quantum capabilities, the intersection of patent protection and quantum computer is of critical focus point if we wish to see the growth of quantum computers in a true sense.

In the current framework ‘software per se’ falls outside the categories of patent-eligible subject matter in USA and India. Under the scheme in USA, it is provided under §101 as per USA’s Patents law and under India’s patent law it is provided under section 3 (k) of the Patents Act. Furthermore, in both the jurisdictions, a software is considered as patentable subject only if it passes the test of technical effect as conceptualized by legal precedents in the cases of Alice/Mayo

DOES SECTION 3(K) OF PATENTS ACT,1970 REQUIRE RECONSIDERATION

We have already highlighted the importance of quantum computing. In the light of the same, a robust legal framework is required for its protection and for its growth. However, the application of quantum computing faces challenges within the legal framework, particularly under Section 3(k) of the Patents Act, 1970. The evolving nature of quantum technologies, often harnessed by SMEs, start-ups, and educational institutions, underscores the need for a nuanced examination of the exclusions prescribed by Section 3(k) to ensure that it accommodates and encourages innovation in this burgeoning field.

Recently, a single judge bench of Delhi High Court , emphasized the necessity for a re-evaluation of the exclusions outlined in Section 3(k) of the Act due to the increasing pace of innovations. The court highlighted that section 3(k) often act as a bottleneck for emerging technologies to gain patent protection and thereby disincentivize inventions in the given field. The court, to support its stance relied upon the ‘161st Report of the Parliamentary Standing Committee’ titled "Review of the Intellectual Property Rights Regime in India. The Report of the Parliamentary Standing Committee underscored that the absence of recognition under patent laws has acted as a roadblock to innovations in the field of AI

CONCLUSION

In conclusion, if India is looking to achieve its ambitions in quantum technologies, a comprehensive policy framework is required. A global perspective underscores China's dominance in quantum communication and North America's leadership in quantum computing. To enhance India's global standing, policies should incentivize private investment in quantum research. Furthermore, existing legal barriers, such as Section 3(k) of Patents Act, 1970, requires immediate reconsideration as it is only acting as a disincentive for firms to work on technologies in the given field.

Author : Arunav, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

REFERENCES-

Section 3(k), Patents Act, 1970

Ferid Allani vs Union of India & Ors, W.P.(C) 7/2014 & CM APPL. 40736/2019

Department of Science and Technology, https://dst.gov.in/sites/default/files/QuST%20-%20CFP1.pdf, (last visited on November 1, 2023)

Department of Science and Technology, https://dst.gov.in/national-quantum-mission-unprecedented-opportunity-india-leapfrog-quantum-computing-technologies, (last visited November 5, 2023)

USPTO, available at https://www.uspto.gov/web/offices/pac/mpep/s2106.html, last visited November 1 2023.

OpenTV Inc v. The Controller of Patents and Designs, 2023 SCC OnLine Del 2771

DEPARTMENT RELATED PARLIAMENTARY STANDING COMMITTEE ON COMMERCE, https://ipindia.gov.in/writereaddata/Portal/Images/pdf/2008-_Department_related_Parliamentary_Standing_Committee_Report.pdf