By: Oleg K. Salakhov, Partner, Berkeley Law & Technology Group, LLP

This article is Part One of a series of articles on the intersection between Quantum Computing and Law

Quantum computing is no longer the exclusive province of theoretical physicists and science fiction writers. It is rapidly moving from laboratory curiosity to commercial reality; and with it comes a wave of legal, regulatory, and intellectual property challenges that law firm attorneys and in-house counsel cannot afford to ignore. This article is the first in a series examining the intersection of quantum technology and the law. Subsequent segments will take a deeper dive into each of the topics introduced below, including IP strategy, patent prosecution challenges, regulatory developments, and cross-border collaboration considerations.

Quantum vs. Classical Computing: A Brief Primer 

To appreciate why quantum computing matters to the legal profession, it helps to understand what makes it fundamentally different from the computing we use today. Classical computers, such as the laptops, smartphones, and servers that power our digital lives, process information as binary digits, or bits, each representing either a 0 or a 1. Quantum computers, by contrast, rely on quantum bits, or qubits, which can represent 0 and 1 simultaneously through a phenomenon known as superposition. Combined with other quantum properties such as entanglement, this allows quantum computers to perform certain calculations at speeds and levels of complexity that are exponentially beyond what any classical computer can achieve. The practical implications for industries ranging from pharmaceuticals and finance to cybersecurity and defense are profound, and the legal and regulatory landscape will need to keep pace.

Why Quantum Matters Now

The window for proactive preparation for mainstream application of quantum computers is narrowing. In December 2024, Google announced that its Willow quantum processor solved a problem so complex that a classical supercomputer could not have completed it within the lifetime of the universe. Months later, Microsoft unveiled its Majorana processor, designed with an architecture aimed at scaling to one million qubits. Meanwhile, governments worldwide, including the United States, China, the European Union, and Japan, are pouring billions of dollars into quantum research and development. The U.S. National Quantum Initiative Act and the CHIPS and Science Act represent significant legislative efforts to maintain American competitiveness in this global race. For legal professionals, the message is clear: quantum is not a distant concern. It is an emerging reality that will reshape entire practice areas, from data privacy and cybersecurity to patent prosecution and cross-border transactions.

Protecting Quantum IP: A Strategic Imperative for Companies

For technology companies developing quantum innovations, a robust intellectual property strategy is not optional — it is a competitive necessity. Investors treat IP as a proxy for innovation, and strong patent portfolios are essential for attracting funding, enabling licensing revenue, and defending market position. Companies should begin by taking stock of their quantum-related assets, assigning personnel to monitor government initiatives and competitor activity, and developing a quantum readiness protocol that anticipates how this technology will affect their business. Companies should also conduct freedom-to-operate analyses early, as overlapping claims in quantum hardware, error-correction architectures, and quantum control systems are rapidly expanding.

Beyond patents, companies must also consider trade secret protections, non-disclosure agreements, and carefully structured joint development arrangements that clearly define ownership rights before, during, and after collaboration. The geopolitical dimension adds another layer of complexity: export controls and foreign investment restrictions will increasingly shape the landscape for cross-border quantum partnerships. A more detailed framework for quantum IP strategy will be addressed in a forthcoming article in this series.

Why Attorneys Must Engage Now with Quantum Technology

Quantum computing will touch virtually every area of legal practice. Most immediately, it poses an existential threat to current encryption standards. The encryption protocols that protect financial transactions, privileged communications, and confidential client data rely on mathematical problems that quantum computers will eventually be able to solve with relative ease. Law firms and legal departments that fail to upgrade to post-quantum cryptography methods risk leaving sensitive information vulnerable, not only to future attacks, but potentially to data that has already been harvested and is waiting to be unlocked. 

Beyond cybersecurity, attorneys advising clients in life sciences, finance, energy, and defense technology will need working knowledge of quantum’s capabilities and limitations to provide sound counsel on transactions, regulatory compliance, and litigation. Building that expertise now, before quantum hits mainstream headlines, is a professional responsibility as much as a strategic advantage. Law firms advising technology companies should begin preparing for these developments now, including assessing client exposure to quantum-enabled cybersecurity risks and evaluating whether existing IP portfolios adequately protect quantum-related innovations.

Patenting Quantum Innovations: Key Challenges

Securing patent protection for quantum technologies presents unique and formidable obstacles. The most significant is subject matter eligibility. Under the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank International decision, abstract ideas, including many general-purpose software algorithms, are not patentable. Quantum computing algorithms described generally or in purely mathematical terms are particularly vulnerable to this challenge. Under Alice, applicants stand a better chance when they can tie an algorithm directly to the physical device performing it, or when the invention involves tangible quantum hardware components, such as lasers, interferometers, cooling systems, or optical elements, among many others. 

Ownership and funding issues present another minefield. Federal government funding, which is substantial in this space, can trigger retained rights under the Bayh-Dole Act, affecting a company’s freedom to commercialize its own inventions. Joint research agreements require careful drafting to address who owns resulting IP, who bears prosecution costs, and whether there are restrictions on transfer or licensing. Finally, timing is a critical strategic consideration. Given that quantum technologies may take years to find their way into marketable products, and that issued patents expire 20 years from the application filing date, it might be beneficial for applicants to consider procedural tools, such as provisional patent applications and Patent Cooperation Treaty (PCT) filings to defer costs while preserving priority rights.

Lessons from the PTAB: Drafting for Enablement

Recent Patent Trial and Appeal Board (“PTAB”) decisions offer instructive guidance for practitioners prosecuting quantum-related patent applications. In multiple appeals, the PTAB has sustained enablement rejections where specifications disclosed only a narrow set of examples, but claims swept broadly across an entire genus of techniques or materials. Given the nascent and unpredictable nature of quantum technology, the PTAB has been skeptical of extrapolating from limited working examples to more expansive claim scope. In one particular decision, the PTAB reversed an examiner’s rejection where the examiner erroneously relied on after-arising technology, developments that did not exist at the time of filing, as a basis for rejecting claims that were fully enabled by existing small-scale quantum systems. 

The takeaway for practitioners is threefold: include multiple, diverse working examples in specifications; proactively assess the level of ordinary skill in the art and document it contemporaneously; and err on the side of over-disclosure when the claimed functionality is complex or the field is rapidly evolving. A deeper examination of the USPTO’s examination trends and prosecution strategies in the quantum space will also follow in a subsequent article.

Conclusion

Quantum computing represents one of the most consequential technological shifts of the coming decade, and the legal profession has a meaningful role to play in shaping how it develops. Attorneys and in-house counsel who begin building quantum literacy now will be far better positioned to advise clients, manage risk, and seize opportunity when the technology reaches its tipping point. 

The questions raised by this new quantum frontier, about patentability, data security, regulatory compliance, international collaboration, and many others, do not have simple answers. But they are questions the legal community must be prepared to solve. This series will continue to explore these issues in depth, providing practical guidance for practitioners navigating one of the most complex and exciting frontiers in technology law.

Look for the next article in this series, which will take a deeper look at quantum IP strategy and building a defensible patent portfolio in the quantum space.

Contact Us

If your company is developing quantum technology or has quantum-related inventions and wants to evaluate whether it is patentable, or needs assistance preparing a patent application, experienced guidance matters. For more information about patenting quantum technology, contact Oleg Salakhov at Berkeley Law & Technology Group, LLP at osalakhov@bltg-ip.com or 503-439-6500.