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2022 BTLJ Comment. 101 (2022)

handle is hein.journals/btljc2022 and id is 1 raw text is: QUANTUM COMPUTING AND INTELLECTUAL PROPERTY LAW Maurit Kop t ABSTRACT What types of intellectual property (IP) rights can be vested in the components of a scalable quantum computer? Are there sufficient market-set innovation incentives for the development and dissemination of quantum software and hardware structures? Or is there a need for open-source ecosystems, enrichment of the public domain, and even democratization of quantum technology? This Article explores possible answers to these tantalizing questions. This Article demonstrates that strategically using a mixture of IP rights to maximize the value of a quantum computer owner's IP portfolio potentially leads to IP protection in perpetuity. Overlapping IP protection regimes can result in an unlimited duration of global exclusive exploitation rights for first movers, who are very often a handful of universities and large corporations. The ensuing IP overprotection in the field of quantum computing leads to an unwanted concentration of market power. Overprotection of information causes market barriers and hinders both healthy competition and industry-specific innovation. In this case, it slows down progress in an important application area of quantum technology, namely quantum computing. In general, our current IP framework is not written with quantum technology in mind. IP should be an exception-limited in time and scope-to the rule that information goods can be used for the common good without restraint. IP law cannot incentivize creation, prevent market failure, fix winner-takes-all effects, eliminate free riding, and prohibit predatory market behavior at the same time. To encourage fair competition and correct market skewness, antitrust law is the instrument of choice. This Article proposes a solution tailored to the exponential pace of innovation in the Quantum Age, by introducing shorter IP protection durations of 3 to 10 years for quantum- and AI-infused creations and inventions. These shorter terms could be made applicable to both software and hardware. Clarity about the recommended limited durations of exclusive rights-in combination with compulsory licenses or fixed prized statutory licenses- DOI: https://doi.org/10.15779/Z38R785Q1G C 2021 Mauritz Kop. t Mauritz Kop is Stanford Law School TTLF Fellow at Stanford University and is Managing Partner at AIRecht, Amsterdam, The Netherlands. Correspondence: advies@airecht.nl. The author is grateful to Mark Lemley (Stanford Law School), Maran van Heesch (TNO, The Hague, Netherlands, CEN-CENELEC Focus Group on Quantum Technologies), Juha Vesala (Stanford Law School) and Suzan Slijpen (Slijpen Legal) for valuable comments. The author owes gratitude to the ECP Platform for the Information Society, TU Delft and TNO for organizing the 2019 Quantum Computing & Quantum Internet meeting at QuTech Delft and to the AI4EU 2020 webinar 'The future of Al' presented by Wouter Denayer (CTO IBM Belgium). The author is thankful to the BTLJ team for excellent editorial support. An earlier version of this Article has been published in the Stanford Law School Newsletter on Transatlantic Antitrust and IPR Developments, Issue No. 2/2020, https://www-cdn.law.stanford.edu/wp-content/uploads/2015/04/2020-2.pdf.

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