As the development of functional quantum computers by companies such as IBM, Intel, and Google advances, post-quantum cryptography (PQC) is becoming a necessity. The exceptionally high processing power of these computers can enable them to break down all modern cryptographic algorithms. To prevent this, more complex encryption and digital signature schemes must be developed and implemented so that the confidential information of governments, corporations, and individuals is not threatened. While this need for quantum-proof algorithms may be apparent, there are many uncertainties and disagreements surrounding PQC patentability.
There exist various arguments for and against software patents. Individuals against algorithm patentability argue that software is simply an “expression of an abstract idea” through code and therefore cannot be patented. They also contend that copyright is sufficient for establishing ownership of an algorithm and that an abundance of software patents slows innovation, especially since corporations often stockpile intellectual property and use it as a weapon. In contrast, proponents of software patents believe copyright is insufficient as the end goal of programs is functionality; without patents, a minor change in source code by a competitor could produce identically functional software and never violate copyright law. These individuals also argue that hardware and software are not separate; hardware produces a general-purpose machine but computer programs turn that machine into something more specific, such as a GPS or camera.[1]
In the realm of PQC, the National Institute of Standards and Technology (NIST) has a clear stance on patents. While NIST does not oppose patents, they are in favor of “royalty-free availability of cryptosystems and implementations.” Standardization should be a time where collaboration and innovation is prioritized over patent conflicts. NIST states that as part of its evaluation, it will prefer “submissions as to which there are commitments to license, without compensation, under reasonable terms and conditions that are demonstrably free of unfair discrimination.”[2] The urgency of developing and implementing PQC is evident. China has nearly twice the number of patents as the United States in quantum communication and cryptography.[3] The question of how judges will interpret PQC patents in the US and other countries has no clear answer; it is dependent on whether “quantum computing will be treated the same way as have inventions implemented on general purpose computers.”[4] What is clear is that politicians and industry leaders must focus on collaboration first in order to prevent future attacks by adversaries. Moreover, NIST must decide whether it wants to choose a quantum encryption standard subject to intellectual property or not. While there is a lot at stake there are also many factors involved in this decision.
[1] Cosgrove, James. “The Pros and Cons of Software Patents.” Juristat Blog, 5 December 2016, https://blog.juristat.com/2016/12/5/the-pros-and-cons-of-software-patents. Accessed 13 June 2022.
[2] “Post-Quantum Cryptography PQC.” Post-Quantum Cryptography | CSRC, 3 January 2017, https://csrc.nist.gov/projects/post-quantum-cryptography/post-quantum-cryptography-standardization/submission-requirements/intellectual-property-statements-agreements-di. Accessed 14 June 2022.
[3] OIKAWA, AKIRA, YUKI OKOSHI, YUKI MISUMI, and staff writers. 2021. “China emerges as quantum tech leader while Biden vows to catch up.” Nikkei Asia. https://asia.nikkei.com/Spotlight/Datawatch/China-emerges-as-quantum-tech-leader-while-Biden-vows-to-catch-up.
[4] Rand, Theodore. 2021. “The US Patent System and Quantum Cryptography: An Awkward Relationship.” IPWatchdog.com. https://www.ipwatchdog.com/2021/08/29/u-s-patent-system-quantum-cryptography-awkward-relationship/id=137148/#.