Integrating Bespoke IP Regimes for Quantum Technology into National Security Policy

By Editor

Stanford, CA, November 19, 2021—In a Stanford working paper titled Integrating Bespoke IP Regimes for Quantum Technology into National Security Policy, Mauritz Kop and Mark Brongersma argue that the world needs articulated, quantum-specific innovation-policy mechanisms—tailored, as their one-sentence synopsis puts it, "to the unique physics of the very small." The paper, posted as a preprint and circulated as a Stanford Law School working paper—now archived permanently in the Stanford Center for Responsible Quantum Technology collection at the Stanford Law Library—builds on Kop's earlier work on quantum computing and intellectual property law and pushes it into new territory: how intellectual property, antitrust, and national security law should be woven together for a dual-use technology that is still in its infancy. At the time of writing, Kop was a Stanford Law School TTLF Fellow and Managing Partner at AIRecht in Amsterdam; Brongersma is a professor of materials science and engineering at Stanford and director of its plasmonics and photonics group.

Bespoke intellectual-property regimes for quantum technology, folded into national-security policy (illustrative editorial image).

The case for a quantum-specific innovation architecture

The authors' starting premise is that applied quantum technology raises cross-disciplinary questions about how to balance its disruptive societal effects—how the innovation architecture should be built so that benefits are distributed equally and risks addressed proportionally. Their recommendation is twofold and, at first glance, paradoxical: treat quantum as something genuinely unique and unprecedented, but also learn from history. Quantum, they note, is a very early-stage family of technologies—comparable to the transistor and semiconductor of the 1960s—with few use cases beyond cybersecurity, finance, and defense, and a long horizon of unknown consequences. That immaturity is precisely why the innovation mechanism should be designed deliberately now, before path dependencies set, rather than retrofitted later. The paper concentrates on the three domains where the stakes are highest—quantum computing, quantum sensing, and quantum communication—including quantum-AI hybrids.

The physics that makes the legal question different

The argument is grounded in the counterintuitive physics of quantum systems, and this is where the paper insists the legal analysis must be quantum-specific rather than borrowed wholesale from software or biotech. Many existing technologies already depend in an essential way on quantum materials—engineered nanostructures, ultrathin films—or quantum effects, and many quantum devices have already been patented; the authors point, for instance, to vertical-cavity surface-emitting lasers (VCSELs), inexpensive mass-produced components found in everything from computer mice to the internet. Because the field sits at the intersection of fundamental physics and information science, value can be captured in hardware, in software, and in the trade secrets that surround both. A legal regime that does not attend to where, physically, the appropriable value lives will misfire. That is the core of the "bespoke" claim: the IP and competition rules for quantum should be cut to the contours of the technology, not imported off the rack.

Pro-quantum antitrust, IP waivers, and democratizing essential technology

From this premise the authors survey a toolkit of innovation mechanisms drawn from adjacent fields—AI, biotechnology, nanotechnology, semiconductors, and nuclear—each marked by long, capital-intensive R&D and uncertain rewards. They argue that intellectual property and antitrust law should work "together in concert" to keep quantum from exacerbating existing inequalities, which may require reform of both doctrines and clarification of their interface. Concretely, they consider pro-quantum antitrust enforcement; the waiving and pledging of IP, including the issuance of compulsory licenses; and the democratization of essential technology. The tension they confront honestly is real: some of the strongest quantum-computing, sensing, and communications startups have relied heavily on IP protection—especially trade secrets covering hardware and software—to raise private capital. The open question is whether key quantum concepts and devices that are currently enclosed should instead be democratized, to balance equal access against winner-takes-all dynamics and openness against control. The paper also looks beyond IP entirely, cataloging state funding, direct spending, prizes, competitions, subsidies, fines, labor-mobility and tax law, education, and immigration policy as further levers for incentivizing progress—an alternative-incentives agenda that extends Kop's earlier work on regulating transformative technology in the quantum age.

Equal access as a distributive-justice commitment

Running beneath the toolkit is a normative commitment the authors describe as a point of consensus within the quantum community: a right to equal access to the benefits of future general-purpose quantum computers and the coming quantum internet. By equal access they mean that each individual, group, or country is afforded comparable resources and opportunities—a principle they articulate in terms of fairness, transparency, equal opportunity, shared benefit, non-discrimination, diversity, solidarity, and prosperity, and one that implies safeguarding net neutrality and avoiding power asymmetries. This is where the IP question becomes a distributive-justice question. If a handful of firms or states can enclose the foundational concepts and appliances of quantum computation and communication, the winner-takes-all dynamics characteristic of network technologies could harden into durable advantage. Pro-quantum antitrust, compulsory licensing, and IP pledges are, in this framing, not anti-innovation measures but instruments for keeping the benefits of a general-purpose technology broadly available. The paper connects this commitment to the broader project of establishing a legal-ethical framework for quantum technology, of which fair access is a load-bearing part.

Treating quantum like fissionable material: a new TRIPS exception

The paper's most concrete proposal is to fold these quantum-specific IP regimes into national security policy by amending international trade law. Given a world divided into two technology blocs with incompatible ideologies and standards, and given the dual-use character of quantum applications—useful for civil good and military harm alike—the authors suggest that countries should be able to treat quantum applications much as they treat fissionable materials. Their mechanism is a proposed new subparagraph—a fourth security exception, 73(b)(iv), added to Article 73 of the TRIPS Agreement—that would give states such as the United States, China, and the Netherlands the strategic option to exclude quantum technologies from IP protection and to suspend the enforcement of patent and trade-secret rights. The elegance of the existing Article 73 regime, they argue, is that it can serve two opposite goals: on their reading, the rationale of 73(b)(i) was to prevent the dissemination of knowledge about fissionable materials by suspending IP, while the authors read 73(b)(iii) as a basis to encourage dissemination by suspending IP—as, they suggest, with the contested patent waivers for COVID-19 vaccines. A quantum exception could be invoked in either direction—to disclose crucial information widely, or to keep it secret—reframed as a risk-based restriction on IP-incentivized innovation in the public interest.

Cycles of openness and control

The authors situate their proposal within a longer historical rhythm. IP history, they observe, swings like a pendulum between underprotection and overprotection, while transformative technologies alternate between cycles of open and closed development under the influence of global power shifts. The risk they flag for quantum is a convergence of the worst of both: overly stretched IP rights combined with progress made in secrecy, each interfering with the innovation process. They acknowledge a practical wrinkle—much foundational quantum work has emerged from publicly funded national laboratories rather than the private sector, which complicates any analogy to fissionable materials whose breakthroughs were similarly state-driven. Lacking what they wryly call an "innovation theory of everything," the authors are careful to frame the right questions about openness, rewards, and control before reaching for all-encompassing answers, and they close with a call for further multidisciplinary qualitative and empirical research. The practical message for policymakers is nonetheless concrete: while quantum is still early—closer to the transistor of the 1960s than to a mature platform—is precisely the moment to design its IP, antitrust, and national-security architecture deliberately, and to keep that architecture cut to the physics of the technology rather than retrofitted from software or biotech, before path dependencies harden the field into an exclusionary trajectory.

This article summarizes a working paper for general information; it is not legal advice. For the authors' authoritative argument, consult the paper itself.

Last updated: June 7, 2026.