Registrable IP Rights
Intellectual Property rights obtained by an application process; territorially limited.
Patents
- New
- A claimed invention is considered to be new if it does not form part of the state of the art, defined as ‘everything made available to the public by means of a written or oral description, by use, or in any other way, before the date of filing of the patent application’.
- Inventive
- A claimed invention is considered as involving an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the Art.
- Non-statutory subject matter considered to be non-technical in nature (and therefore per se not patentable):
- Discoveries
- Scientific theories
- Mathematical methods
- Aesthetic creations
- Schemes, rules and methods for performing mental acts, playing games or doing business
- Programs for computers
- Presentations of information
Patentability of Nu Quantum Technology Developments
New Science – likely to result from fundamental research into distributed quantum computers. Where potential products cannot be sufficiently described or enabled, it may not be possible to distinguish the innovation from more generic prior art on quantum internet technologies. However, the innovation is patentable when directed to potential Nu Quantum products.
New Engineering Techniques – likely to result from current Nu Quantum projects and grant projects. These may be more suitable for protection by Trade Secrets or Confidential Information.
New Nu Quantum products and product elements – significant potential for patentability; visibility is theoretically high but will depend on market conditions.
The two patent families that were licensed by Cambridge Enterprise at the founding of the company are less relevant to the new technology direction and one of those licences has been relinquished. The learning and development remains more generally relevant to the new technology direction. Subsequent technology developments are covered by later filed patent applications, owned entirely by Nu Quantum.
In line with the conclusions drawn by the EPO in its recent Insight Report on the results of patent analyses in the field of quantum computing, we are focusing its efforts on identifying innovation in the physical realisations of quantum computing. We identify technology developments that will be delivered to commercial partners and customers, either instantiated in technology products or via an IP licence or cross licence arrangement.
Unlike many other fields, a significant amount of prior art has or is only published as academic papers, making patent landscaping exercises more complex and less informative than more mature HPC areas. Additionally, we anticipate that some legal expenditure may be needed to support or refute arguments relating to enablement and plausibility, since many academic papers are quite ‘light’ on the technical details and implications of the assertions.
Initial patent applications filed on approved Invention Submissions are likely to be substantial and incur the costs accordingly. VP Legal & IP will be involved in detailed review of drafts, amendments and filing programs.
Appropriateness of Patent Protection vs Confidentiality/Trade Secrets
A formal part of the patent application process is publication of the application, which needs to describe the invention in sufficient detail for it to be reproduced by others.
In order to prove infringement in court, especially outside the US, the patentee needs to rely on non-confidential (that is public domain) materials.
Where infringement is hard or impossible to prove, the value of patent protection should be very carefully weighed against the risks arising from disclosure. This is particularly important when patent protection is necessarily narrowed by the formal requirements to tie patentability to a specific use case. For example, manufacturing techniques may not provide the necessary evidence of infringement.
Market Size & Timescales
Annex 1 outlines a recommended scoring scheme for assessing the suitability of patent protection for Nu Quantum. As outlined above, where the Market Size is uncertain, Detectability is low and Patentability is limited, it leads to the inherent conclusion that Nu Quantum should seek alternative IP protection for that innovation.
Trade marks
The registration of a trade mark may be revoked on the grounds that it has not been put to genuine use in relation to the goods or services for which it is registered.
Use of a mark on a website is not considered to be use of that mark in that territory.
Limited use of the mark Nu Quantum is probably sufficient to provide the necessary evidence if the mark is challenged in the UK. Use, and therefore registration of the mark Nu Quantum in other territories is only necessary when realistic prospects of customers in those territories arise.
Registered Design Rights
Will only be relevant for Nu Quantum once products are on the market. We will assess these rights closer to product launch.
Unregistrable IP Rights
Intellectual Property rights that subsist in a work and do not need an application process.
Copyright
Infringement occurs in relation to the work as a whole or any substantial part of it, and either directly or indirectly; it is immaterial whether any intervening acts themselves infringe copyright. However, in order to prove infringement one needs to prove copying, which can be difficult to establish when concepts or ideas are copied but individual lines of code or documents are not copied.
Copyright is an Intellectual Property Right that can be licensed to another party. Copyright may subsist in data sets generated as part of experimental work (see also database rights).
Copyright in code or compilations of Open Source Software (OSS) created by Nu Quantum Employees vests in Nu Quantum by virtue of the contract of employment.
Copyright in third party code (such as OSS) may be licenced to Nu Quantum to use by virtue of a software licence. Company Policies on the use of third-party IP, and open source software in particular, govern the mechanism by which engineers may reuse this code. Responsibility for the management of these policies lies with the VP of Legal & IP to support the selection of acceptable and unacceptable licences.
Unregistered Trademarks
Unregistered Trademarks will provide limited protection in territories where no registered trademarks exist. Otherwise, not relevant to Nu Quantum.
Database Rights
Will provide limited protection for Nu Quantum-created data sets.
Unregistered Design Rights
Will only be relevant for Nu Quantum once products are on the market. We will assess these rights closer to product launch.
Trade Secrets
Will be used as an alternative to patenting, such as for algorithms that are not patentable or manufacturing techniques that need to remain highly confidential.
Nu Quantum has one formally identified Trade Secret which is being actively managed by the company.
It is unlikely that Nu Quantum will be able to implement the necessary level of obfuscation of software code needed to defend the trade secret given the nature of the customers and their desire to review code.
Trade Secrets will be important for Nu Quantum when we are making prototypes or products of a low Technology Readiness Level.
Confidential Information
Confidential information applies to sensitive data and information of all forms, regardless of the media on which it is recorded, if at all, and before other forms of intellectual property come into existence to protect it, if at all.
The underlying basis of protection of confidential information is that receivers of confidential information can be contractually bound to not take unfair advantage of it, by preventing others from disclosing it or misusing it. The law of equity will restrain transmission of confidential information from one person to another if that transmission would be in breach of some confidential relationship: a breach of confidentiality.
Confidential information is information which is not in the public domain and common knowledge, is not trivial or useless information and which would cause harm to the owner or be advantageous to rival businesses, if it was disclosed. The information does not require commercial, financial or monetary value to be attached, but it must not be too vague. It must be sufficiently developed and "capable of being realised as an actuality". Aspirational ideas which lack detail do not usually qualify.
The law of confidential information does not create a personal property right and is not a property right in any normal sense, although it is often treated as such and can be licensed.
Nu Quantum will rely on the law of confidentiality, around for example the selection, combination and implementation choices in providing deliverables for projects, in manufacturing prototypes and in the selections of elements used in its research. Confidential information will also subsist in the choices of software tools, internal design processes, and COTS products. This will be particularly relevant for early stage engagements with customers and partners and will be succeeded by patents, trade secrets, design rights and copyright as the projects proceed to higher TRL products. There is also a significant amount of confidential information involved in the production of microcavities, and the integration of this into qubit based technology.
Third Party Held IP Risk
A significant proportion of the material in the field of Quantum Computing is published as academic articles, many of them published in an open source format. The EPO insight report highlights that the number of relevant patent applications are substantially below the equivalent number in more mature technology fields, as would be expected. Early patents in the field of scalable quantum computing were filed in the early to mid 2000’s (e.g US7518120B2 “Long-distance quantum communication and scalable quantum computation” Regents of the University of Michigan) such that the technology will be off-patent by the mid to late 2020s. Never-the-less, we invest in watching the latest patent and literature publications to de-risk, where possible, the potential implications of third party held patents on the Nu Quantum technology roadmap.
Another source of potential risk is confidential information or know-how held by project partners (such as Innovate UK collaborators). Where possible and relevant, we will seek to extend the standard collaboration agreements with additional licences and commercial arrangements. Additionally and/or alternatively, we will also seek to develop relationships with alternative providers of similar technology solutions, to de-risk reliance on a single source of expertise.
The use of immature open-source software as part of the tool chain needed to develop control software is another potential source of risk. At present there are a number of commercial partners that provide alternative solutions. As we grow, it is likely that we will develop an active open source contribution process with a team to support it.
The multidisciplinary nature of the science and technology surrounding the qubit-photon interface leads to the natural conclusion that practical, commercially-viable solutions tailored to a particular partner/customer will contain technology, and therefore IP, from a number of partners. We are preparing our interface technology for both manufacturing and licensing, and we are pursuing roadmaps to develop the interface that are both collaborative and fully in-house.
Annex 1 – Invention Review Guidelines
These guidelines govern the process by which the Company will elect to pursue patent protection. While the terms of these guidelines are not mandatory, any departure from these guidelines should be recorded. The VP of IP has the authority to instruct or make emergency filings to preserve a priority date or keep applications alive. The decision to file is made by applying the following formula:
IF $Log_yX>=N$ THEN FILE
- X = (Timescale) x ($Market) x (Detectability) x (Patentability) x ($Reduction to Practice)
- Y= (Timescale_min) x ($Market_maz) x (Detectability_max) x (Patentability_max) x ($Reduction to Practice_min)
- N = Threshold based on budget & risk
For Nu Quantum:
- Reduction to Practice can be set to 1 (if patent can be written it is reduced to practice, no additional evidence needed)
- Timescale can be set to 1
The equation is therefore simplified to:
IF $Log_yX>=N$ THEN FILE
where
- X = ($Market) x (Detectability) x (Patentability)
- Y = ($Market_max) x (Detectability_max) x (Patentability_max)
- N = Threshold
