Current quantum ambitions have become almost synonymous with the successful commercial exploitation of “previously untapped aspects of quantum theory.” However, major engineering hurdles still stand in the way of creating scalable, fast and fault-tolerant (“error-free”) quantum devices, which are vital for successful commercial scale-up of quantum technologies. The European Union’s (EU) recent Quantum Strategy highlights the role of expanding quantum actors’ intellectual property (IP) portfolios to facilitate the “lab-to-fab” translation of quantum research into quantum technologies. While robust IP strategies can incentivize innovation, overly aggressive patenting can also enable early actors to appropriate foundational technologies in ways that block further research and downstream innovation.
Compared to export controls—a better-known means of ring-fencing quantum value chains—intellectual property rights have received less attention in policy discussions. Yet the quantum patent landscape is rapidly evolving. In the United States, safeguarding intellectual capital is now central to the National Quantum Strategy. In Europe, policymakers see quantum patents as instrumental to achieving “strategic autonomy“—the ability to act independently in key economic and security domains.
This article explores the emerging role of IP in quantum innovation governance. It does so through three lenses: (1) how IP strategies map onto value-chain dynamics; (2) how upstream patents can constrain downstream R&D; and (3) how chokepoints may arise when key actors monopolize control over critical quantum technologies.
Structuring a Quantum Patent Value Chain
A value chain describes a series of steps, with each resulting in incremental addition of value. It articulates how firms capture and transform knowledge value. Thus, a quantum IP value chain follows how “value adding” activities can transform original ideas for quantum inventions into legally-protected and potentially remunerative intellectual assets.
Firms’ IP strategies integrate “value-adding” activities to maximize the value of their IP portfolio, which is tied to its perceived competitive edge vis-à-vis investors, partners, and competitors. The EU Quantum Flagship’s IP Guidelines, for example, outline such value-adding activities and includes an IP roadmap, IP intelligence about the patent landscape of the firm and its competitors, IP pipeline of tasks on the technical and legal side, and education on research protocol routines that enable creation of a patentable invention. The European Quantum Industry Consortium has also highlighted how patent value chain analysis may be critical in risk assessments on potential patent infringement as well as potential export control issues, especially in cases of reliance on third-party IP.
Effects of Upstream Patenting on Downstream Innovation
Decisions regarding the kind of knowledge legally coded into patents determines where and how such knowledge may diffuse or accumulate along the entire innovation value chain. Research in innovation economics shows that within preexisting innovation networks, patent growth in “upstream” technology fields has strong predictive power on future “downstream” innovation (i.e. research that builds upon prior discoveries).
Patent law scholarship highlights that a patent regime’s formal structure disadvantages downstream research because the latter often falls within the scope of an existing upstream patent. These patents not only block downstream technology from being sold, but also block research needed to prototype downstream innovations. Therefore, innovators would encounter legal hurdles in conducting research towards downstream technologies because of upstream patents blocking potential downstream research pursuits. To bring about new downstream technologies, innovators would need to obtain licenses from upstream patents (an obligation that researchers may be unaware of or whose compliance they do not deem feasible), restructure their research to not infringe on upstream patents, or (unwittingly) conduct research and produce innovations that infringe on upstream patents.
While certain exceptions allowing for downstream research have been judicially, doctrinally or practically negotiated and hammered out, these paths have “accumulated haphazardly over the years,” according to law professor Janet Freilich. For instance, these exceptions may favor foreign research over domestic research, computer modelling over physical testing, and research on new methods of using, rather than making, products. These unsystematic and incidental legal avenues for downstream research within a formal system that favors upstream patents strongly influence the direction of downstream innovation by shifting the course of scientific development. Consequently, within a patent regime structurally inclined to block downstream innovation, quantum actors may fashion patenting strategies to exploit structural advantages of being early/first movers to secure upstream patents, while others may need to shore up strategies to anticipate legal roadblocks and search for clearings in an upstream patent thicket.
Quantum Patent Chokepoints
Considering how upstream patenting can result in blocking effects, intellectual monopolies may emerge within the dynamics of the quantum value chain, particularly in countries with firms engaged at knowledge intensive nodes of the value chain. First movers in the quantum field — particularly those seeking to become full-stack providers — may be able to gatekeep integration opportunities for smaller or more specialized players in the value chain. They may have the ability to capture knowledge or intangible assets from other firms across the innovation value chain. Reports from the Quantum Economic Development Consortium, European Quantum Industry Consortium, and European Patent Office show that IBM, Microsoft, D-Wave, Google and Baidu are amongst the top patent owners. Another study shows that between 2010 and 2020, 2,802 applicants contributed to a total of 9,905 patents, and 20 key players (from predominantly the United States and China as well as Japan, the United Kingdom, and Canada) alone account for around 20 percent of patents filed.
As a result, there is a risk that certain actors could instrumentalize patent regimes to ring-fence the use of processes, tools and solutions for emerging quantum research, amassing intellectual monopolies. First-mover patent holders may devise strategies to extract rents from knowledge resources, i.e. from incremental or piecemeal technological advances in quantum innovation. This allows first movers to exclude others from accessing those resources, such as the use of critical solutions or processes for quantum devices or systems like physical implementations/realizations of qubits, error-correction routines, debugging quantum circuits or qubits readout methods.
Excluding competitors from intellectual assets or knowledge-intensive nodes in the innovation value chain enables states to control chokepoints in important economic networks. States can exploit others’ vulnerabilities arising out of this economic interdependence to compel policy change. Thus, the cornerstone of technology value chain governance of identifying, safeguarding and controlling ‘chokepoints’ dovetails with patent regimes’ structural inclination to favor intellectual monopolies upstream. This could easily result in a race towards patent chokepoints within home turf innovation ecosystems and simultaneously against patent chokepoints emerging in competitors’ innovation ecosystems.
Redirecting patent strategies towards open innovation
If ring-fencing measures relying on patent rights or export control regimes dovetail with patent regimes’ inherent structure favoring upstream innovation, a course may already be set for further restructuring distribution and dependencies on knowledge resources, enabling the emergence of intellectual monopolies and patent chokepoints along the quantum value chain. Alongside the engineering bottlenecks of creating scalable, fast and fault-tolerant quantum technologies, these legal chokepoints may perhaps emerge as a persistent hurdle in moving quantum innovation forward.
Left unaddressed, the structure of existing patent regimes may accelerate the consolidation of knowledge power among a few early movers, raising barriers to entry and skewing the direction of scientific progress. Nonetheless, patents still remain a fixture of quantum actors’ IP and innovation strategies. Patents are still regarded as important signifiers of actors’ innovative capabilities, as instruments to protect proprietary knowledge, and to commercialise technological advances through licensing. The overhaul of the patent regime is not the goal. Rather, we should ask better questions about what specific needs of quantum innovation patents are answering. Merely encouraging “more patenting” to drive innovation overlooks the limitations of the patent regime and its appropriateness for the quantum ecosystem’s need to scale-up.
A promising avenue to rethink the role of patent regimes for quantum is along the principles of open innovation, for instance proposed in the European Quantum Industry Consortium’s 2025 Strategic Industry Roadmap. Building a quantum firm around a business model that encourages seeking, sharing, and collaborating on ideas, knowledge, and technology from both internal and external sources may be more conducive to scaling quantum, rather than innovating in order to get to the market “first.” Given that quantum is expected to develop rapidly, being the “first” could be a fleeting matter of arbitrarily defined technical milestones. Open innovation is not synonymous with innovation without protection. If quantum actors choose to engage in open innovation, they could still structure their IP strategies to “strategically manage openness” by protecting key inventions whilst still fostering a culture of co-creation. Patents may play a key role in such open innovation practices by allowing for outbound licensing to share technologies and tacit knowledge with network partners, and also facilitate faster diffusion and adoption of the owner’s technology.
Thinking about patenting within a concrete governance framework, such as open innovation, could help us steer our thinking around IP strategies towards the goal of collaboration to accelerate quantum scale-up rather than having to take recourse to ambiguous goals of ‘quantum innovation’ that may obscure the detrimental effects of first-mover patenting in consolidating technological monopolies and thus keeping out newcomers and smaller quantum actors, who may be able to offer niche and valuable solutions to the still nascent and growing quantum industry.
The post Intellectual Property within the Quantum Innovation Value Chain appeared first on Just Security.