Quantum computing innovation continues to develop rapidly. As with any innovation, protecting intellectual property requires considering the different forms of protection. Patents and trade secrets are the two forms of intellectual property best suited to protect quantum computing innovation, which should you choose?
Patents and Trade Secrets: The Basics
Conversely, trade secrets protect confidential information known only to the owner and those necessary for the owner to confide in. Generally, in order to confer status as a trade secret, the information must provide an advantage over competitors who do not know or use the information. Trade secrets may protect formulas, processes, customer lists, and other technical or business information. Trade secrets do not require registration with any entity and lose their status upon public disclosure.
While there are many factors to consider when deciding whether to protect innovation via patent or trade secrets, two primary factors include: the likelihood of a competitor reverse engineering or independently discovering your innovation, and the kind of technology.
Can competitors develop, access, or reverse engineering your technology?
Perhaps the simplest factor between choosing patent or trade secret protection is to consider whether a competitor can access and reverse engineer your innovation. Trade secrets relating to internal processes and manufacturing may be more readily kept hidden from competitors. However, product offerings which incorporate or embed trade secrets provide an opportunity for competitors to access, reverse engineer, and implement your innovation. Furthermore, trade secrets do not protect against independent discovery, thus consider how likely your competitors may independently discover and develop the same innovation. This is a particularly important consideration as independent discovery may leave you vulnerable to a competitor patenting the same technology, thereby blocking you from using your own innovation.
Thus, if you believe a competitor can replicate your innovation through reverse engineering or independent discovery, protecting your innovation through trade secrets is likely insufficient, and you should consider whether to pursue patent protection.
Eligible subject matter: hardware versus software
Among other criteria, patents must be directed to eligible subject matter. For example, Canadian patent law prohibits patents directed to higher life forms and mere scientific principle or abstract theorem. CIPO has further implemented guidelines inconsistent with patent law as pronounced by the courts, that has ruled many computer-implemented inventions (i.e. software) as ineligible subject matter. A recent court decision however has ruled that CIPO’s practice guidelines are inconsistent with the law, thus providing hope for future innovation in this space. Accordingly, while the state of patent law remains in flux, computer-implemented inventions may continue to face barriers to obtaining patent protection.
In contrast, hardware innovation readily falls within enumerated categories of eligible subject matter and typically does not face the same barriers to patent protection seen in the software space.
Thus it’s important to consider what type of innovation you have developed. Hardware innovation will typically militate in favour of patent protection, while software innovation will typically militate in favour of trade secret protection.
When deciding whether to pursue patents or trade secrets to protect your quantum computing innovation, there are other factors to consider beyond the foregoing, including costs, attracting investments, and future licensing goals. Thus, any innovation should be approached contextually, to decide on the best strategy for protecting your hard earned intellectual property.