Integrating Bespoke IP Regimes for Quantum Technology into National Security Policy
20 Pages Posted: 26 May 2022
Date Written: August 8, 2021
1 sentence synopsis: The world needs articulated quantum-innovation policy mechanisms (tailored to the unique physics of the very small).
The adoption of applied quantum technologies by the markets raises cross-disciplinary questions about balancing their disruptive societal effects. It raises questions on how our innovation architecture should be constructed, so that benefits will be distributed equally and risks proportionally addressed. Responding to these challenges we find that policy makers should treat quantum as something unique and unprecedented, but should also learn from history.
In this light, we examine the need for an innovation mechanism tailored to the counterintuitive physical characteristics of quantum technology, particularly in the quantum computing, quantum sensing and quantum communication domains, which includes quantum-AI hybrids. Besides that, we find that it is useful to draw parallels between regulating neighboring fields, for many reasons.
From a cross-disciplinary lens, we connect quantum technology to fair competition and intellectual property, including patents and trade secrets. Ideally, IP and antitrust law should work together in concert to prevent quantum from exacerbating actual inequalities. This may require reform of both doctrines and clarification of their interface. We consider pro-quantum antitrust enforcement, waiving and pledging IP - including issuing compulsory licenses -, democratizing essential technology and analyze quantum-startups’ value appropriation strategies.
Some of the best startups in the development of quantum computers, sensors and communications systems have strongly relied on IP protection -including trade secrets about hardware and software- to raise funding from private investors. Yet we wonder whether key concepts and appliances in quantum that are currently enclosed, should be democratized to address tensions between equal access & winner-takes-all effects, and conflicts between openness & control. We recommend building upon pluralistic innovation mechanisms tailored to adjacent fields such as AI, biotechnology, nanotechnology, semiconductors and nuclear, each characterized by a long investment and R&D phase coupled with uncertain outcomes and rewards, and a Pandora’s Box of probabilities and unknown risks.
Given the political reality of a world divided in two tech blocks with incompatible ideologies, standards and values, plus the multiplied societal benefits and safety & security threats, vulnerabilities and risks associated with dual use quantum technology, we suggest that countries should be able to treat quantum applications similar to fissionable materials.
In this spirit, we propose to integrate bespoke IP regimes into national security law. We conclude that we can effectively integrate quantum-specific IP regimes into national security policy by adding a new security exception to article 73 (b) (iv) TRIPS. This will give countries the [strategic] option to exclude quantum technologies from IP protection and suspend the enforcement of patent and trade secret rights, similar to fissionable materials.
One fundamental question is whether we want technological information disseminated widely or want it hidden. The theory behind art. 73 (b) (i) TRIPS was to prevent disclosure and dissemination of knowledge by suspending IP on fissionable materials, whereas the rationale of art. 73 (b) (iii) is to encourage disclosure and dissemination of knowledge by suspending IP, for instance on vaccines. Therefore, the article 73 national security exception regime can [in theory] be invoked in the service of both goals: widely disclosing crucial information, and keeping it secret. As a main rule, the interests of owners of IP rights must be balanced against competing public interests such as national security, fundamental freedoms, privacy and equality rights.
A novel article 73 (b) (iv) TRIPS exception will give countries like the US, China and The Netherlands the opportunity to integrate handcrafted IP regimes for quantum technology into their national security policy. These measures can be seen as a risk-based restriction - in the public interest - of IP incentivized innovation.
In practice however, it may be harder to exclude state of the art quantum materials from IP protection as compared to fissionable materials as in that case most of the breakthroughs came directly from National Labs that are funded in a different way, often by governments spending public money. On the other hand, it might be easier to block disclosure and dissemination of future game changing discoveries since the Trump administration set up the US funding through the National Labs. Therefore, we may have a repeat play with basic science innovations emerging in secrecy rather than in the private sector.
With that, we can distinguish cycles of disclosed and secret development of transformative technologies, with history repeating itself under the influence of global power shifts. Stated differently, we are witnessing historic recurrence of cycles of open en closed innovation. Similarly, IP history shows a pendulum swing between stages of under protection and overprotection. This means that for applied quantum technologies we are heading towards a scenario of overly stretched IP rights (overprotection) in combination with progress made in secrecy (undisclosed information), which both interfere with the innovation process.
The above illustrates the importance of employing alternative incentive and reward systems to advance innovation within the quantum domain. Beyond IP, policy makers have an array of options to incentivize creative and technological progress, such as state funding, direct spending, competitions, subsidies, prizes, fines, labor mobility law, tax law, education, immigration policy, and attracting talent.
To manage our own inventions, rules need to evolve with technology. Lacking an innovation theory of everything, we attempt to formulate the correct questions on openness -including the rewards of open research and innovation- versus developer and user controls, before giving definitive, all compassing answers. We end with an urgent call for further multidisciplinary qualitative and empirical research on the issues raised.
Keywords: Quantum, Innovation, Law, National Security Strategy, Intellectual Property, Policy, Art 73 TRIPS, Nuclear, Fissionable Materials, Sensing, Computing, AI, Dual Use, Antitrust, Trade Secrets, Patents, Physics, Nano, Bio, Semiconductors, Equal Access, Government Funding, Values, Principles, Risk Based
JEL Classification: O24, O31, O32, O33, O34, O35, O38, O39, K11, K12, K39, F13, Z18
Suggested Citation: Suggested Citation