By: Prakriti Singh and Yash Arjariya
INTRODUCTION
Quantum computing draws its essential pieces from concepts of quantum physics (superposition, entanglement, and tunnelling), the theory of the ‘very tiny’. Quantum mechanics explains the interaction between matter and energy and the building blocks of atoms at the subatomic level, beyond classical physics, including subatomic particles such as protons, neutrons, and electrons. In terms of practical ramifications, probably the most striking response has been supplied by Peter Shor in 1994 establishing quantum computing as exponentially faster than any known conventional algorithm.
In general, quantum computing is particularly suited for addressing mathematical optimization problems, some of the computationally challenging issues on which we built existing cryptography. However, the potential of quantum computing cannot be reduced to just mathematical methods, but have tremendous repercussions in actual world situation.
An analysis of US patent applications presents Quantum computing as one of the top 10 Fast Growing technologies of 2020 with a compound annual growth rate of 41.75%. A major increase in quantum computing patent family publications which are forecasted to rise by 430 percent from less than 100 publications in 2014 upto more than 400 publications projected through 2017. Advanced jurisdictions like US and Switzerland intend to pursue cooperation in the field of quantum computing and accelerate the realization of innovative technologies for the benefit of humanity. UK has already set up the UK National Quantum Computing Technologies Program which intends to develop hubs of quantum computing excellence, has set up the Quantum Innovation Fund patronizing QC innovators and above all, has provisioned $460M investment. EU’s flagship initiative on quantum technologies has been launched with a 1.2bn euro commitment has delineated European Quantum Technologies Roadmap. The Senate IP Subcommittee has already started working to provide oversight of the U.S. Copyright Office, focusing on modernization efforts and technology updates.
The Indian Army had set up a quantum computing laboratory to foster development in the discipline of quantum computing in India. Academic institutions and start-ups are also active participants, as quantum computing has the potential of enhancing growth in various industries. However, the legislative instruments, especially in India have failed to provide space for quantum inventions in the Indian Intellectual Property Rights (IPR) framework. Authors critically examine the preparedness of the Indian paradigm in keeping pace with the dawn of quantum computing. It is specifically analysed how the absence of protection of innovation in quantum computing through a robust IPR framework will act as the roadblock to larger investments and more active participants.
Through this essay, the authors aim to examine quantum computing and its position in the Indian IPR framework, also with an account of specific issues pertinent to Global Jurisprudence as well. An attempt has been made to flag the strategic concerns arising out of the non-customization of the Indian IPR framework with respect to Quantum Computing. Further, the cross-section of quantum computing with the digital regulation arm of the present antitrust regime has also been accounted for.
The authors analyse the implications of Quantum computing in two-fold manner; how the existing Intellectual Property Rights framework deals with prospective applications seeking protection for Quantum computers, algorithms, programmes and allied creations and how existing protected and encrypted data sets are impacted by Quantum computing. An effort has been made to explain the classification of quantum computing and related algorithms in existing patent-eligible subject matter list, the concept of low authorship as applicable on quantum algorithms.
Further, authors bring forth the changing landscape of research and data mining avenues in the dawn of the quantum era. Authors analyse how the immense potential of quantum computing can drastically alter the research avenues and why a specific legislative stance is needed on the issue. A unique consideration has also been given to the potential threat of technical circumvention and de-encryption of protected data structures arising out of developing capacities in quantum technology.
GENESIS OF QUANTUM COMPUTING- THE CONTOURS OF EXISTING PROTECTION
The Patent Conundrum
The incorporation of a natural phenomenon or abstract idea into a practical application may be eligible for patent protection, and courts acknowledge that technological breakthroughs like computers may imply such integration.. However, quantum computing claims should not be so broad as to embrace what courts have deemed software per se, even if they are directed to a practical application. For instance, the Supreme Court considered the mathematical formula in Flook, the natural laws in Mayo, and the isolated DNA in Myriad to be judicial exceptions even though they were all novel or recently discovered because they were “‘basic tools of scientific and technological work’ that lie outside the purview of patent protection.
Because software per se does not come under one of the categories of patent-eligible subject matter stated in §101, when a claim’s widest possible interpretation incorporates software per se, examiners commonly reject the claim under §101 as comprising non-statutory subject matter. Additionally, the court has held that novelty in algorithm cannot save such application. To decrease such danger of rejection, claims to quantum software would benefit from explicitly encapsulating tangible, non-transitory substance, with hardware parts incorporated where available.
In addition to problems with patentability, it may be difficult to enforce quantum computing patents owing to the difficulties in recognising infringement. Since much of today’s quantum computing is cloud-based, proving infringement could require reverse engineering, yet quantum hardware might be out of reach. The fact that quantum processing occurs in a superposition of states that is destroyed when observed and that logic operations are solely meant to measure results may also make reverse engineering more challenging. Patent protection restrictions could make secrecy the better choice.
‘Low Authorship’- Under Inclusive Copyright Regime
Akin to this, a number of ideas may persuade judges to reduce the level of protection offered by copyright laws. As object code is “not in writing, conveys no meaning to humans, and has no literary character,” the court in IBM v. Computers Products Ltd. decided that object code cannot be protected as a “literary work” in and of itself. Common law doctrine has been less receptive to including computer programmes in the category of “literary work,” especially when they are expressed in source and object code formats. Prof. Jane Ginsburg distinguishes between ‘high’ and ‘low’ authorship. According to him, it is challenging for copyright laws in many countries to accept works with little individual creativity but significant economic value. Applications programmes that often consist of a plethora of interconnected individual programmes and sub-routines that may undergo regular updates and enhancements constitute “low authorship.” This problem intensifies considering that the courts have not accorded protection to the structure or organisation of a computer program or its non-literal element.
The Trade Secret Saga
There are various viewpoints about the period when Quantum technology reaches commercial viability. Investigators dispute, however, which criteria should decide whether quantum computing has attained technical maturity. Whilst Industry leaders think that quantum computing would not have evolved as a technology unless it could answer challenges that have economic, intellectual and social value.
According to market trends, five firms intend to develop fault-tolerant quantum computing equipment by 2030. If this timescale holds, the market will probably have a clear quantum advantage by then for a number of applications. While this remains a very small step towards Quantum attaining technical maturity. Most of the Quantum computers currently work at less than 100 qubits, while giants have been working tirelessly to break the barrier with only IBM succeeding to achieve 127 qubits mark.
Since patents typically last for 20 years and quantum computing is still in its initial stages, it may be more than 10 years before quantum computers are widely available commercially. The creators of such machines will not gain from the protection if improvements do not reach commercial maturity within the term of the patent. Thus, in such case scenario, trade secrets will be preferred. As a trade secret, technological advancement will be protected in the future to the point that a patent would be outdated by the time quantum technology becomes commercially viable.
Additionally, the jurisdictions may not be favourable for granting copyright protection to computer programmes that may qualify as low authorship. Thus, firms investing in quantum computing will be more tempted to seek trade secret forms of protection as this defence starts up automatically and doesn’t expire; it lasts until the secret technology is found on its own, deciphered, or made public by the owner. However, this may not be useful since trade secret protection is typically more costly, and potentially less safe than patent protection as it involves inventors expending major efforts in securing their “secret sauce.” Moreover, such a technique is regarded to keep scientific knowledge concealed from the public, impeding information exchange.
Despite the fact that different companies choose the strategies they feel will best protect their technological innovations based on anticipated go-to-market plans, a well-balanced combination of information security laws and a focused intellectual property strategy will help ensure their innovations a place in the quantum computing future. This well-balanced strategy cannot fundamentally sustain itself on a trade secret form of protection and requires concrete commercial viability through copyright and patent protection; necessitating amendments in existing patent-eligible subject matter and removal of low authorship concept.
Text and Data Mining- New Avenues in Researching Capabilities
Text’ for the purpose of TDM is far more general and encompasses any type of work or subject matter, and not solely text. Accordingly, text encompasses any type of content such as texts, sounds, images, information and so on. According to UK law, the term ‘text and data analysis’ refers to a computational analysis of anything recorded in a work or in a recording of a performance to which one has lawful access. In the cases of Authors Guild v. HathiTrust & Authors Guild v. Google ‘text mining’ was construed as non-expressive computational and statistical research.
With the advent of Quantum computing, the contours and processes of text and data mining are to change and evolve in new dynamics, for example, quantum computing is possible to execute Fourier transformation exponentially quicker than the classical limitor search through a database quadratically faster, by manipulating subatomic particles. Nonconvex objective functions may have their global optimum found using adiabatic quantum optimization. A twofold optimization approach used in quantum process tomography is similar to active learning and transduction.
United Kingdom provides for an exception with regard to TDM analysis for non-commercial research. It recognises an exception where there is “computational analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose”. Similarly, other jurisdiction like Japan also provides in its copyright law an exception for information analysis, wherein the relevant provision provides for the extraction of information for statistical analysis of such information.
The analysis may be proceeded as ‘ETL’ (Extract, Transform and Load) or ‘ELT’ (Extract Load and Transform). In both cases, the acts which take place are (a) the extraction of content from the work/subject matter (b) transforming data so that it becomes compatible with the mining tool and be subjected to operational needs (c) loading of data into a data set, repository (d) applying the data to mining tools.
It is clear that at some stage such acts on most occasions (but not always) involve some act of copying. The judgement given in Infopaq International A/S v. Danske Dagblades Forening laid that an excerpt of eleven words may be protected. The Art. 2 of the Information Society Directive states the exclusive right of the rightholders to permit or forbid the full or partial direct or indirect temporary or permanent reproduction by any method and in any form, in whole or in part, of their works or subject matter constitutes the reproduction right.
However, where a mining tool crawls rather than extracts excerpts, minimal or temporary copying could be exempted under Art. 5(1) of the Information Society Directive. The judgement was given by the Court of Justice in Public Relations Consultants Association Ltd v. Newspaper Licensing Agency Ltd which was of the same effect. Additionally, it is also argued that the term ‘analysis’ refers to techniques and tools, that remain on the surface of the data to be analysed without really going deep into it by performing acts of reproduction and extraction.
Such practice can also be exempted from the reproduction right provided that a. The act is temporary, b. It is transient c. It is an integral part of the technological process . Its sole purpose is a lawful use. It has no independent significance. A transient act as an ephemeral act linked to a technological process. Such exceptions are explicitly manifested in the laws of UK & Japan.
TDM becomes a basic means of research. It is only normal that the existing legislative framework had not taken this into account and is therefore not tailor-made to fit its need.Often, TDM will involve acts of reproduction and probably not acts of distribution and communication to the public. Yet, obstacles are present to TDM since they can only be accessed on a case-to-case basis given the fact that they have not been made to suit TDM. Thus, the lack of clear provisions on TDM for scientific research purposes creates uncertainties in the research communities in the dawn of Quantum technology.
The Operability Test
It is a recognised jurisprudence in the USA that the operability of the stated findings that are in variance with common experience and with accepted scientific principles must be demonstrated. Further, in Re Swartz, the court highlighted that a replicable outcome is necessary for the filed application; otherwise, individuals versed in this art would ‘fairly question’ the alleged usefulness and operability.
Innovations that push the boundaries of science are rightfully held to a higher standard and often assessed by the repeatability of results. The Boards must deal with what seems to be a departure from accepted scientific theory, and the Board correctly maintains the need for experimental evidence. The boards demand experimental evidence and explanations to support and demonstrate the innovation’s operability.
The situation is left more problematic in light of the decision given by Fed. Cir. Which lays, “When a claim requires a means for accomplishing an unattainable result, the claimed invention must be considered inoperative as claimed and the claim must be held invalid under either § 101 or § 112 of 35 U.S.C.”
The regulators will be troubled when something as novel as Quantum computers and allied products, challenging the existing scientific and processing norms are tabled before them for seeking protection. The authors humbly submit that no other jurisdiction has had the opportunity to consider novel inventions (at the nearest scale to Quantum Computing) for granting them patent protection. The culmination has been the development of the ‘Operability Test’.
The authors assume that when Indian Regulators review the patent applications for Quantum computing, they shall make a similar enquiry with respect to the utility and functioning of the product. As established earlier, Quantum technology is much more complex and advanced than classic computing algorithms, the review process is bound to become challenging for the regulators.
This plight is worsened by the absence of a specific Appellate body for IPR framework in India. The Intellectual Property Appellate Board (IPAB) has been abolished under the Tribunals Reforms (Rationalisation and Conditions of Service) Ordinance, 2021. The abolishment of such a board places the burden of hearing and disposing of appeals against the regulator’s decision with respect to quantum technology on generalised courts in India, i.e., High Courts. There are two-fold ramifications of such a problem; first, the pending cases are to be dealt by the overburdened commercial courts and High Courts. Secondly, a lack of IPR expertise may be reflected in the slow disposal of the applications and may even lead to the rejection of eligible subject matter because the courts may not be ardent to deal with such complex technology. Conclusively, the lack of a specialised appellate board for IPR framework in India reflects the obsolescence of the Indian IPR Regime, which shall be detrimental to the interest of Indian jurisdiction from developing as a favourable jurisdiction for emergent technologies. The Report presented by the Parliamentary Standing Committee also underscored the need to re-establish IPAB creating a robust IPR Regime comprising specialised IPR Courts.
Circumvention
The EU directive provides that member states may prohibit such devices which work to break the technological protection of protected works, such as the de-encryption of databases. To protect against the same, criminal liability has been imposed on devices ‘primarily designed produced or adapted to enable the circumvention of technological measures. Herein, the law is limited in its scope because it does only cover devices ‘primarily designed’ for the purposes and not devices which consequently were used for the purpose. Any person who proves that he/she did not have reasonable grounds to believe that this device will be used for the said purpose. A peculiar situation which may arise is that courts construe the situation where the manufacturer knew the device ‘could be’ be used (because of capabilities, though usage intended for the purpose) for circumvention as having ‘reasonable grounds’ to believe that the device will be used for such purposes.
Civil liability covers a much broader scope than criminal liability. Liability exists not only in relation to devices primarily designed, produced and adapted. for the purpose of enabling and facilitating’ circumvention, but also to devices ‘promoted, advertised, or marketed’ for that purpose and ones having ‘only a limited commercially significant purpose or use other than to circumvent’. Criminal liability is also imposed on people who supply ‘unauthorized decoders, which decode encrypted transmissions so as to enable access to the transmission without payment of the fee that the person making the transmission charges for access.
The damage posed by Quantum to existing encryption structures can be better understood by taking RSA encryption as structure. According to Georgia Wood, Centre for Strategic & International Studies, a powerful quantum computer (housing 4099 qubit processing speed) will take only 10 seconds to surpass the encryption structure which a traditional computer system will take 300 trillion years. Thus, the dawn of quantum computing has already far-reaching implications with the industry in quest for quantum safe-cryptography. It is expected that the first set of standards which are quantum-resistant cryptography will be slated for public release by 2024.
In light of the aforementioned considerations, jurisdictions may adopt UK based model to deal with the circumvention of technological measures. The current practice of leaving the databases and secured data at the mercy of encryption cannot be sustained in the Quantum age. Quantum computing is bound to destruct even the most advanced cryptographic structures. The National Institute of Standards and Technology has pre-emptively devised a policy to call for proposals for post-quantum cryptography standardisation to provide for protection to secured data in the Quantum age.
However, such Policy measures must be accompanied by a legislative instrument precluding the usage of quantum computing for technical circumvention for two reasons; first, the development of such quantum-proof encryption may not occur in the near future. Secondly, the development of quantum-proof cryptic standardisation may be feasible for advanced jurisdictions but not all jurisdictions house such means and resources to develop such encryption, thus legislative instrument may be their only safeguard against technical circumvention by quantum computing.
It is also pertinent to consider that the liability of manufacturers is not unnecessarily imputed by construing ‘could be used’ for technical circumvention as having ‘reasonable grounds’ that they will be used for circumvention. The problem can be avoided by mandating a compulsory transfer of device priory specifying the objects and usage of the procured device. Thus, any act of circumvention wherein the prima facie intended usage was not circumvention, will attract liability on the user rather than innocent manufacturer.
QUANTUM COMPUTING IN INDIA- TRACING THE NEXUS WITH IPR
The Report by the Parliamentary Standing Committee on the IPR Framework of India (2021) reiterated the importance of a robust Intellectual Property Rights (IPR) framework in India to promote innovation. This set of rights is available to a person for his new idea or innovation. A robust IPR framework promotes new ideas as precious assets. However, the Indian IPR Regime must find a balance between these personal rights and the safeguarding of fair competition.
The Report made a comparative analysis of the Indian IPR Regime with the US and China. India lags far behind in patent filing. The expenditure on Research and Development is directly proportional to the number of patent claims. The Report acknowledged India’s failure in providing a robust framework of IPR to Artificial Intelligence (AI). Artificial Intelligence aims to create systems that would replicate human intelligence and perform cognitive tasks. AI has a huge potential for the Indian economy. However, the absence of a strong IPR framework has hindered the realization of this potential.
Another similar mischief is the non-recognition of quantum computing, a term which is in a way, more novel and dangerous when compared with AI. The first official acknowledgement towards Quantum Computing in India was made through Budget 2020. The government made the first step towards a big investment in Quantum Technology. A mere budget allocation or setting up of quantum computing labs is not sufficient to prepare India for the age of quantum computing. Quantum computing carries a threat larger than AI. Given the failure of the Indian IPR Regime to recognize these twenty-first century developments, the hybrid of AI and Quantum Computing carries unforeseen threats for India.
Although the US is the global leader, China’s progress in the realm of quantum computing is phenomenal. China has publicized its ambition of acquiring supremacy in quantum computing. The progress of China in the field of quantum computing is a severe threat to India’s security. India does not have a first-mover advantage, new entrants and small players are active in the field of quantum computing. Large companies of the USA and China have easy access to funds for quantum computing. A robust IPR Regime, which incorporates Quantum Computing, will pave the way for India’s survival in the era of Quantum Computing. An IPR Regime which incentivises filing quantum patents in India will significantly enhance Indian participation in quantum computing. As dealt earlier, a trade secret is the preferred option for the large players in quantum computing to safeguard their creation. And unfortunately, the IPR framework lacks clarity to such a novel field of invention.
The next part of the essay will deal with the contours of Quantum Computing and IPR in the Indian context. It will analyze how the digital space has been a tricky terrain for India. Further, it emphasises the strategic concerns for the Indian state while studying the progress made by China in quantum computing and why India must safeguard itself from Chinese supremacy in the field of quantum computing.
At the end of the forthcoming part, the authors sketch the reasons for India to have a robust framework to address this twenty-first century revolution in quantum technology.
Report by Parliamentary Standing Committee- India’s Capacity in the Dawn of Tech Era
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. India’s failure with AI, if repeated in the realm of quantum computing will wreak havoc. The legislature needs to show urgency in its approach and adapt the Indian IPR Framework to this twenty-first-century threat.
In Ferid Allani vs Union of India & Ors, the Petitioner filed a patent application for “method and device for accessing information sources and services on the web“. As per the examination report, a patent cannot be granted due to the absence of novelty. Section 3(k) of Indian Patent Act, 1970 threw a spanner in the patent application. According to Section 3(k), “mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable inventions”.
The Petitioner contended the ground “lack of novelty” to reject the application as inaccurate. In the digital word, using a wide-worded legal provision to deny patentability to computer programmes reflect regression. The effect created by digital products should act as the crucial factor in approving or rejecting patentability. This order also drew a comparative analysis with the global practices. It reflected the need to align the Indian patent regime with the rest of the world. AI innovations are either computer systems or computer mechanisms. Therefore, the Parliamentary Standing Committee emphasized the need to review this Section for making Indian jurisdiction compatible with new-age inventions and technologies.
Indian Competition Policy – Google Saga
The leap in quantum computing combined with overlapping IPR and huge investments by large companies such as Google, Alibaba in quantum computing poses a potential threat to India. The concentration of power in the hands of a few big companies is a threat to fair competition. Competition law and IPR law supplement each other by balancing innovation and preventing concentration of market power.
The nascent Indian competition regime was underprepared to deal with digital revolutions. In Samir Agrawal v ANI Technologies and Others, the CCI dealt with the issues of algorithmic collusion and hub and spoke cartel. In this case, the CCI missed the opportunity to bring algorithmic collusions under the ambit of anti-competitive agreements. In India, digital markets have posed challenges to the competition regime. The Competition Law Review Committee, 2019 underscored these challenges and gave some recommendations.
One of the issues highlighted by the Committee was algorithmic collusion. As highlighted by the Committee, the novelty and creativity of these algorithmic collusions can lead to anti-competitive effects even without human intervention. It is projected that AI and quantum computing, in the coming years will surpass human intelligence. In 2020, the CCI released its first-ever Report on E-commerce. Algorithmic collusion was a key issue highlighted by the CCI.
Recently, Google was under the CCI scanner. Within less than one week, the CCI gave two rulings against Google. Both these rulings entailed hefty penalties on Google. The CCI also issued “cease and desist” order. The CCI held Google liable for abuse of its dominant position. The ruling is a milestone in the jurisprudence of competition in technology markets. The CCI acknowledged the benefit of indirect network effects.
Google is an active participant and investor in quantum computing. Google was successful in abusing its dominant position in the digital markets. Initially nascent towards the digital market, the Indian competition regime filled the enforcement gaps. The issue was first flagged in 2018. It took four years to impose a penalty and a cease and desist order. Indian Competition regime has an active enforcement regime supported by leniency regulations. The Amendment to the Competition Act, 2002 has recognized the challenges in digital markets. Google was successful in taking advantage of loopholes out of a strong law and an active enforcement regime. There is an absence of a legal mechanism to regulate and recognize quantum computing in India. The path for misuse and exploitation by the large player is clearer than in the digital market.
Strategic Concerns
China has utilized its advancement in the cyberspace for cyber espionage against different countries, India being one of them. From the power grids in Ladakh to the vaccine manufacturers, Chinese cyber espionage has embroiled India. The target on the vaccine was made with the objective to cripple India’s vaccine diplomacy amid the pandemic. It would impair India’s production and supply of vaccines across the globe. China abused its dominance in the cyberspace to impede free trade and fair competition.
While the progress of well-capitalized companies in the field of quantum computing is a possible threat to India, the pace of its neighbour’s progress is an imminent threat to India. Sino-Indian relations have been strained on the military and territorial front. However, China’s offensive against India through cyberspace has posed a threat to innovation and free trade in India. The larger the gap between development in quantum computing, the more severe threat to India.
Strong IPR Regime and Quantum Computing
If India is to match pace with the standards of quantum computing in other jurisdictions, such as US, China, European Union, the IPR Regime needs an amendment on an urgent basis. In advanced jurisdictions, there is government investment, investment by large companies as well as investment by universities for growth in quantum computing. In India, the investment is much lesser in magnitude. Thus, an effective IPR framework would do good to incentivize investment and innovation in the field of quantum computing.
As the risk involved is fairly high, the investors need recognition from the IPR regime, India has the opportunity to curate its IPR Regime with the needs of new-age technology, this change shall compensate India’s limited investment capacity in the field by attracting the big players in the allurement of easy and swift protection process for quantum computing.
Patent and Quantum Computing
While the big players prefer trade secrets over patents, robust patent protection would help the new players in India. In India, one of the key participants in quantum computing is start-ups. Patent rights would enable them to raise capital investment for this research-intensive quantum computing. However, section 3(k) of the Indian Patent Act, 1970 prohibits patent rights to “a mathematical or business method or a computer programme per se or algorithms”. This provision has hindered AI innovation. The same hindrance would occur in quantum computing. Section 27 of TRIPS provides standards of patentability- “Patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application”.
The Parliamentary Committee has already recommended a review of Section 3(k) from the perspective of AI innovations. However, this review should be made from the perspective of quantum computing as well. This review must be made on an urgent basis. Although the report was released in 2021, the legislature has failed to provide protection for AI innovations. The only step of India towards Quantum computing is the allocation of a meagre sum in Budget 2020. Though it had recognized the necessity for development in quantum computing but the means employed are insignificantly small to the targeted ends. This problem intensifies with the void of specialised appellate board in wake of the developing operability test jurisprudence.
CONCLUSION
In light of settled jurisprudence of operability test for patent applications seeking protection for technologies or methods challenging existing scientific and established capabilities, it is imperative for India to have a specialised body discharging the function efficiently and effectively. The authors also humbly submit that the eligible subject matter list for patent protection be expanded and the concept of low authorship be done away to prepare the IPR regime for the quantum age.
For the reasons cited earlier, authors submit that the quantum algorithms and related technologies be not left at the mercy of trade secret protection but the jurisdictions must actively safeguard the rights through protection by copyrights and patents.
Further, having considered the potential offerings which quantum computing has in research and data mining sector, the legislative instruments should be re-considered to accommodate data scrawling (without conversion and publication) as an exemption, to facilitate optimum utilisation of quantum technology in research and innovation.
The authors have brought out the possibility of quantum computing breaking the existing encryption standards, leaving the protected data sets prone to be utilised and appropriated by unauthorised users. It is suggested that jurisdictions adopt UK-based legislative measures to preclude the chances of technical circumvention by stopping the exchange of devices for the said purpose. However, the authors have suggested guarding against the excessive liability of device manufacturers by suggesting that having the knowledge of the device’s capability in circumvention should not be construed as having reasons to believe that such a device will be used in circumvention. Hence, restricting the device manufacturer’s liability.
Indian Government has invested INR 8000 crores on quantum technology, including quantum computing. However, this level of investment would be insufficient to meet the investment made by USA, UK and China. Undisputedly, Parliament needs to provide incentives for innovation and investment in the discipline of quantum computing. The judiciary has taken a harsh stance on section 3(k) of the Indian Patent Act, 1970, consequently, the Parliament needs to relook this provision. The Parliament ought to view the Parliamentary Standing Committee’s recommendation on reconsidering the abolition of IPAB with urgency. India has a history of legislative mischief and vacuum in the realm of Artificial Intelligence and digital markets. Repetition in the field of quantum computing will prove to be expensive, economically as well as strategically.
(Prakriti Singh and Yash Arjariya are law undergraduates at Hidayatullah National Law University, Raipur. The author may be contacted via email at arjariyayash7@gmail.com).
Cite as: Prakriti Singh & Yash Arjariya, ‘Quantum Computing and Intellectual Property Rights- A Two-Way Analysis’ (The RMLNLU Law Review Blog, 5 May 2023) <https://rmlnlulawreview.com/quantum-computing-and-intellectual-property-rights-a-two-way-analysis/> date of access.
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