Intellectual Property Rights in Quantum Computing: A Comparative Study of India, China, and International Framework.

Abstract-

The twenty-first century is no longer a struggle between states, but rather between humans and machines. Quantum computing and artificial intelligence have destroyed established legal categories, resulting in inventions that outperform the very Intellectual Property (IP) rules intended to safeguard them. While existing frameworks in China and India were designed for incremental technologies, they now face a new era of disruptive, cross-domain discoveries that blur the distinctions between software, hardware, algorithms, and human creativity. This research is whether intellectual property law can continue to protect innovation or whether it becomes it risks becoming a spectator to technological sovereignty: unlike previous investigations.

Keywords – Patent Law, QaaS, Quantum Computing, Intellectual Property Rights (IPRs), Cross Domain Innovation, Patent harmonization, artificial intelligence convergence, etc.

Introduction

Intellectual property rights have their own emergence, whether it is in computer science, social science, AI or materialistic or non-materialistic things which we use in our day-to-day life. Therefore, “IPR is just not a tool- it is an aggregate intangible asset which is embedded in our system”. Quantum Computing is not only a frontier of modern technology, but also a struggle of international influence. This paper includes the interrogation of gaps, an analysis of inconsistencies between the developments, trends, More Fundamental questions, such as:

• Are we in the era of Humans or Computers? Can Intellectual Property Law protects or closes its loophole, or will they neglect in fast-paced 21^st Century? How will it safeguard new innovations?

The rapid advancements in complex areas such as Artificial Intelligence, Drug Discovery its Manufacturing system or due process, Design Layout, Codification etc. demand a robust mechanism for IPR frameworks. The integration into the Legal System in India or China. How can Existing IP frameworks adapt to protect inventions in quantum computers, particularly in areas like algorithm and ai driven societies like China and India?

While we focusing on below mention topics:

• How do emerging QC challenge the technology in current Patent, Copyright system?
• How Should IP Rights evolve to address cross-domain Innovations while balancing the Convergence of AI and Quantum with in realm of Incentives, Inventions and the access to public within reasonable Price?

Objectives –

1. To critically examine the adequacy of intellectual Property rights while what challenges are being faced when we pose the quantum computing and Artificial Intelligence.
2. To provide reforms
3. To analyze the judicial responses while providing the novel realistic research.
4. To recommend legal policies to close the loopholes within or at cross borders innovations and inventions.
5. To provide a roadmap while confronting the research in depth.

Literature Review –

Quantum Computers are more than technological advancements; they pose a challenge to the current IP frameworks. As with classical inventions, quantum technologies integrate algorithms, hardware, and processes built on entanglement. Such integrated technologies are impossible to fit within the conventional IPR system. Existing international agreements such as the WIPO frameworks and The Patent Cooperation Treaty (PCT) do not distinction between classical and quantum inventions; There are still many unanswered questions, like “Who owns a quantum algorithm co-developed by various countries?” and “How can we safeguard AI-designed quantum protocols?” This draws attention to a serious weakness in international IP law. This research proposes legal models to protect such integrated system which conventional patent hard to classify. This study aims to explore using block chain to track quantum patents and their usage. The meaning of Intellectual Property Rights in regarding to quantum computers can be served as protection granted to invention or innovation, hardware, algorithms. This ensure balance between Invention and Innovation, security and collaborative which ensures to the inventors whether the content is recognized by human or AI, the aspect of legal protection.

In China –

From 2013 to 2022 “With QC’s assistance, China’s total domestic patent grants accounted for 56.5% of all domestic patents during the same era (quantum communication), 30.3% of all domestic patents, and 37% of all quantum patent applications globally between 2003 and 2022, outpacing the US by slightly over 28%.^[1]

Patent Governance Structure in China (as amended 2021) –

Under Article 2 of the chapter 1 which is “General Provision”:  It is defined as Invention means any new technical solution proposed for a product, a process or the improvement thereof.^[2] Which covers quantum cryptography protocols, algorithms etc. According to the research center, the experiment demonstrated that even with a 76% reduction in parameters, training effectiveness improved by 8.4%.^[3]

Under Article 22 of the chapter 2 which is “Requirements for Granting Patent Rights”:

There are three requirements which needs to be fulfilled Novelty, Inventiveness and Practicality which are defined under Patent Chinese Law –

1. That novel invention or utility model cannot be a part of what’s already known, and no one has filed an application with the Patent Administration Department under the State Council that describes the same invention or utility model before the filing date includes – Patent documents published after that date.
2. Inventiveness means that, when compared to what’s already known, the invention has significant features that show real progress. For a utility model, it also needs to have noteworthy features and represent some advancement.
3. The invention or utility model can actually be made or used, and it should have a positive impact is known as practical applicability.

Furthermore, it poses a challenge for quantum Patents because many are “Theoretical or Practical” experiments which needs to be experimented for development.  The article 25 (1) does not include “rules and methods for mental activities^[4]” this raises question for Quantum Algorithms ‘are they patentable or not’?

It also eliminates existing abstract procedures from article 25 about quantum algorithms from present research or academic disclosure. This creates dissonance between hardware and software patentability.

Under Cyber Security Law (2017) –

Article 25: In the event of a cybersecurity incident, network operators must create emergency response plans and take swift action to mitigate system, computer viruses, cyber-attacks, network intrusions, and other cybersecurity threats. Network operators should start the following procedures as soon as cyber security issues happen:  An emergency response plan, adopting appropriate corrective action and reporting to the appropriate departments in compliance with applicable requirements.

 The conclusion for Q.C. is that the patent license for innovations involving encryption and decryption may be restricted under article 37. A clear conflict between state security interests, commercial exploitation of IP.

Quantum cryptographic datasets and quantum communication protocols may be considered “core data”. Unlike many other countries, China classifies data directly as a security asset.

This approach makes it more challenging for foreign joint ventures to access or patent collaborative quantum research. Article 21 and 24 of the Data Security Laws (2021) describes the Data Classification System.

PIPL, 2021-

Personal Information Protection Laws, or PIPLs, went into force on November 1, 2021. On August 20, 2021, the 13th National People’s Congress of the People’s Republic of China (NPC) passed it through the Standing Committee ^[5] EU GDPR is closely formulated According to Article 38; the relevant authorities must authorize cross-border data transfers. 

The intersection of the data protection and quantum IPR –

If a quantum computing innovation requires training on massive data sets (quantum M     L) exporting data for patent could breach PIPL restrictions.

The ability to “break” safe encryption, run intricate simulations, and analyze large datasets for better threat identification and decision-making are just a few of the security uses for quantum computing.^[6]

In India,

There are seven different forms of intellectual property rights: copyright, patent, and trademark, design, and so on.  This protects quantum computers as well.  In India, the following Acts safeguard the interests and rights of inventors: the Copyright Act of 1957, the Patent Act of 1970, the Trademark Act of 1999, and the Design Act of 2000. In Farad Allani v/s Assistant Controller of Patents^[7] The court emphasized that not every computer-related invention falls under the exclusions of patentability outlined in Section 3(k). The important points to consider are:

• Technical Effect: The invention needs to deliver a technical result or effect and
• Technical Contribution: The invention should add something valuable to the existing technology.

Section 2(1) (j) of Indian patent law defines invention as a novel product or technique involving an innovative step that is capable of industrial application…^[8]  Furthermore, Section 3(k) of the Patent Act of 1970 outlines which inventions are not patentable, such as mathematical or business methods, computer programs, or algorithms.^[9] The mere fact is that QCA may or may not be patentable under Indian law; it depends upon the technical application. This creates a larger gap in jurisprudence which is uncharted. QC AI Models includes the codes and datasets which may cover in the Copyright Law. The traditional approach of copyright law protects “expression,” which creates the challenge for the quantum algorithms and AI generates answers/sol.  Diluting the line between ideas and expression.

Contemporary challenges –

1. The self-evolving algorithms and generating optimization accelerating the AI model upon Quantum Computing. The inventors, legal and ethical question raising Orthodox IP frameworks.
2. The obscurity over quantum algorithms includes Art. 25’s exclusion about rules and methods.
3. Unlike India, china’s law incorporate and values the “National Security” “securitized IP governance”. Both jurisdictions are adopting a measured approach or experimenting cautiously yet scholars continue to be polarized whether sequential reform will suffice? Or whether new sui generis approach is required?
4. Typically, Patent protects the technical solution of technical problems as defined under laws but Stochastic & indeterminate will fall in gray area particularly in quantum computing.
5. The access in innovation benefits the elite hubs whereas local hubs are often unfunded or have small financial ability which cannot access patent algorithms or proprietary software which often create a gap between the economy and effects the civilians as well. Moreover, it produces intellectual poverty while people has talent but legal frameworks unintentionally limit and block its participation due to high licensing cost or complex patent landscape. However, it may be noted that scholars focus on High-level IP laws but they are ignoring that humans are suffering indirectly. The engineers, researchers etc. from a small town or city often excluded from the innovation economy. Because either they can’t pay due to its high cost or either they don’t have such a strong background that if they pay, they will left nothing- it is difficult for sole bread feeders.
6. It relies (quantum computing) heavily on mathematical algorithms, many of which are patented but the main problem is that due to stifle collective learning  over patenting, it  becomes vital part of advancing a field is still in experimental stages while young researchers spend years to navigate the re-inventing already discovered projects or concepts. Therefore, it is the cause of slow progress, economic and psychological strain stems. At last, these are not just an IP law gap but it is a human capital bottleneck which is rarely captured in existing scholarship. 
7.  There are ethical blind spots i.e. china has strict enforcement where as India is lagging in patent clarity to create an ethical asymmetry. However, Scholars often discuss about enforcement in intellectual property rights protections above that most of them fails to recognize about dire consequences which results in Legal harassment or may ruin economy where there is major shift.
8. IPR unknowingly or unintentionally export human capital which is a rare social consequence in research.

Quantum Computing and its Adaption:-

The Algorithm-as-service which is also known as QaaS in Intellectual Property, the quantum computing is extending towards cloud services where the execution of algorithm or quantum hardware is marginal in enforcement. The computers cannot be transferred physically; however the current laws do not protect distant/remotely executed software. In my opinion, there must be “Execution Rights of Intellectual Property” which grants the legal protection for remotely executed either QA hardware or QC. The licensing agreement must cover the usage and executional limits which is ensured by innovators who retains the control. It would be impactful for cloud serviced based on services provided by quantum and that will encourage to startups to develop proprietary algorithms. Further, to its adaptation the period of 20 year is too long which raises the new concerns, In reference to that, they should introduce short term, renewable patents for quantum which may be either from 2 to 6 years.

It will enhance the automatic renewal mechanisms to keep IP relevant, this will surely increase the rapid iteration without blocking future interest and inventions while protecting their right. The entanglement of quantum ownership is joint ownership frameworks imagining resources, while enforcing the new legal attribution rules based on the Inventors contribution to intellectual property. The cross domain Intellectual Conflicts have intersection with QC in relation to cryptography; AI, nanotechnology etc. are overlapping. To reduce its effect, they should develop a quantum Intellectual property Clearinghouse to reconcile overlapping or over-riding effect on rights. To encourage the patent’s multi domain application they need to be evaluated jointly. It will impact on the followings parts which are as follows- 

• Commercial rights,
• Disputes and stream innovations
• The Present china’s Patent Law, 2020 Amendment, Copyright Act, 2021) were designed in Pre-digital Era, that are leaving loopholes where the machine regulating generated inventions are kept. Therefore, China considers inventors as the Natural Person.
• Encourage and Support Startups,
• Democratize quantum innovation.

Methodology-

The quantum intellectual property gap mapping believes that rather than traditional doctrines vs. empirical methods, this approach maps the mismatches between quantum innovation and existing IP category. Take a real quantum patent and file the both in China and India and test if its fits under software, hardware or the categories of process. This would highlight legal blind spots.  This diagnosis has not been used in legal blind spots, it was inspired by a “The regulatory gap analysis” which was applied to quantum computing. Thus, developing technically feasible scenarios but hypothetical where quantum, AI and cryptography intersect. Test can be made on “A quantum-AI hybrid algorithm for drug discovery. This test is against the both Indian & Chinese IP frameworks. The novelty shows that instead of analyzing laws in isolation, this methods stress the test IP regimes by forcing them into future convergence which scholars have not explored or focus on it.

It introduces the concept of legal entanglement about borrowing technology from Physics that is completely original framing which is not used in prior IP research. They should develop Quantum Intellectual property index scale to measure how quantum ready’s law. The parameters are as follows –

• Patent Versatility,
• The speed of enforcement,
• The Judicial capacity of technicality
• Cross – domain borders.

In 2018, China accepted 55,000 international patent applications filed under PCT. As of the end of 2018, China has owned 8,381,000 valid patents, with 10,000 population holding 11.5 invention patents. In 2018, technology contracts signed totaled 412,000, valued 1.7697 trillion Yuan and up 31.8% over 2017.^[10]

This methodology consist of three layers such as the laws like India’s Patent Act, 1970; China’s Patent Law, 2020 Amended; Cyber laws, News Articles, research papers etc. they are the primary sources.

Indian Journals, Chinese Journals, Comparative works etc. are the secondary sources. Comparative study of china allied with strategies, proactive with industrial policy. The India’s judiciary driven adaptation and reforms. This research is developed to align the technological milestones for driveling in quantum computing with legal reflection of the indicators. This research is an original tool to protect and incentivize quantum innovations it reflects on the legal research shows how IP laws are adapting the quantum computing aligned attributions of inventions are blurred on the other side. Textual analysis, comparative legal reasoning and human suffering: how humans are being suffocated by it, policy analysis etc.  Are technique used in it. This research shows where and what needs to be reformed, it loopholes, the reality which somehow previous scholars failed to recognize. 

Limitations –

The following are the limitation –

1. The research primarily relies on doctrinal analysis, since quantum computing and Artificial intelligence innovations are nascent, wherefore, limit case laws expresses its concerns while it is proven fact that every technology has some lacks with in their system, or either people only what they want to see.
2. The rapid technological evolution may become quickly outdated which effect they global regulatory emerged legal system.
3. The key limitation is that there is lack of uniformity, since copyright law only protect the expression because of that it mostly falls into the gray area while restricting the categorization.

Lacuna in Literature –

The matter of fact is that mostly available literature either talks about India’s IP challenges or discuss the Patent centric models in isolation. Existing studies scrutinize patent software or inventions; unpredictable in nature, the current researchers fails to explain how inventive steps like novelty, utility test should adapt for QC. Issues like accessibility of inventions at reasonable price are rare. Rural sectors of the countries are still remained unidentified. IP laws grant monopolies over quantum technologies while humans suffering still remain unanalyzed. The anticipate results are based on the judicial reasoning which still remains in questions that how will future reasoning of judiciary will find or rely or on whom to rely?  There is no comprehensive balance study of incentives for inventors while assuring public when there three converge that is artificial intelligence, quantum, Data and cyber security.  The four pillars of quantum computing.  In light of quantum disruption, India and china as major WTO members none explore how they reshape international IP negotiations while some papers mention and talk about the technologies or mentions TRIPS obligations.

Recommendation and Reforms –

1. Provide a distinct class for the quantum computing, though AI is popular 2now days and many people rely on that India and china cans Trailblazer while setting the precedent globally, important point to note that no country has yet created a specific “Quantum IP subclass”.
2. To create a multilayer protection system where core algorithms can be protected as trade secret from 5 to 10 years while innovation for patent protection should be reduced from 20 to 15 years (monopoly period). It will provide balance financial incentives for society both for big tech and startups.
3. To prevent a patent thicket and ensure autonomy in global south in quantum tech – retain royalty free good applications or with minimum cost for quantum health care.
4. A mandatory artificial quantum impact assessment should be applied with conditions. That no current Intellectual Property has an ethic based technology which mandate disclosure that helps to innovate new IP grants.
5. The monopoly form for health and climate within the rules of IP.
6. To push a Cross Domain Invention Treaty at WIPO for Quantum Computing specialization in AI convergence.

Conclusion –

Ultimately, the issue isn’t whether we will live alongside quantum computing, but whether policy-makers can keep step. Intellectual Property law, re-imagined today with foresight, broad participation, and built-in flexibility, could yet link creativity and collective benefit. Neglect the redesign, however, and the statutes of the next decade will feel as distant from common use as parchment feels from science, stranded between the accelerating minds of machines and the breaking point of social consent. Acceleration, not drift, defines the age. Breakthroughs measured in months pit capable machines against doctrines measured in parliamentary cycles. Each reform cycle leaves mile-wide gaps, most of them between the lab and the licensing office. Inventors who should enrich medicine or public safety contemplate patent-trap pitfalls, reluctant to reveal quantum algorithms with partial protection. Unfilled cracks sap credibility, and in sap percepts of law, once broken, are even harder to tune.

Intellectual property law is on the verge of a third tectonic shift, a third era that follows the industrial and the digital, and this third period will be set and settled before the first decade of deep-trust quantum cloud networks and ubiquitous autonomous-AI transactions ends. The question, settled only in the breach of settled authorship, ownership, and use norms, is simpler and wider than precedent: which of the instruments now in use—rewarding time, labor, and the labor property of a now-regnant, now-tentative, hyper-citations era—was ever intended to reward the property of a machine that is itself a distribution of machines, of repetitious-safe-maintenance expanses of micro hierarchies, self-modifying in cooperative community at a legal scale that composes the large human damages but not at the same ‘scale’? The instruments imposed in the first bonafide of the law match neither the past industrial creation nor a post-cytological agriculture that an AI-trained-code machine now trains itself on and blasts poetry. The instruments of the last copyright and of the last patent speak past the present. Contemplation rather than response is therefore, Reconsideration rather than an affirmation. A breach of the assumption that, now that machine shared ordering and history suspects ordering of the ordering, the analytical and the legislative were the past’s ascription. A breach reminding, instruments can locate but instruments cannot predict. The only interim governance that machines and human under experimentation of machines can rehearse is not an affirmation, not an answer, but an agitated, moved, and moving joint delirium that, for now, is at the scale of assent of the educated and of the breached educated. The interim question is, for now: who will injure, who will repair, and under which past and under which vehemen of breach they will repair, and who will repair the repair and will repair the repair.

Reference(s):

[1] Victoria Bela, china’s patent figures reveal it’s closing the gap on US quantum dominance, available at https://www.scmp.com/news/china/science/article/3256824/chinas-patent-figures-reveal-its-closing-gap-us-quantum-dominance  last visited on 16 August, 2025.

[2] Patent Law of the People’s Republic of China, 13 Oct 2022, https://english.cnipa.gov.cn/col/col3068/index.html

[3] China’s homegrown superconducting quantum computer completes world’s first fine-tuning of billion-parameter AI model, Global times, available at https://www.globaltimes.cn/page/202504/1331580.shtml last visited on 16 August, 2025.

[4] Article 25, Patent Law of the People’s Republic of China, Shanghai  Intellectual Property Administration,  available at  https://sipa.sh.gov.cn/patent/20191130/0005-28434.html Last visited 16,August 2025.

[5] Personal information protection law of the People’s Republic of China, PIPL https://personalinformationprotectionlaw.com/.

[6] Quantum technology: applications and implications.  https://www.csis.org/analysis/quantum-technology-applications-and-implications .

[7] Ferid Allani v/s Assistant Controller of Patents ,OA-17-2020-PT-DEL.docx, (July 31, 2020), https://www.anandandanand.com/wp-content/uploads/2020/08/Ferid-Allani_Landmark-judgement.pdf

[8]  Section 2(1)(j) in The Patents Act, 1970 https://indiankanoon.org/doc/1348840/

[9] Legislative implementation of flexibilities, India, Section 3 (k) of the Patent Act No. 39 of 1970  https://www.wipo.int/ip-development/en/agenda/flexibilities/details.jsp?id=8825

[10]  2019 IPR Updates, https://chinaipr.mofcom.gov.cn/iprupdates/2019/ipr_2019_q2.html