Innovation, Quantum-AI Technology & Law

Blog over Kunstmatige Intelligentie, Quantum, Deep Learning, Blockchain en Big Data Law

Blog over juridische, sociale, ethische en policy aspecten van Kunstmatige Intelligentie, Quantum Computing, Sensing & Communication, Augmented Reality en Robotica, Big Data Wetgeving en Machine Learning Regelgeving. Kennisartikelen inzake de EU AI Act, de Data Governance Act, cloud computing, algoritmes, privacy, virtual reality, blockchain, robotlaw, smart contracts, informatierecht, ICT contracten, online platforms, apps en tools. Europese regels, auteursrecht, chipsrecht, databankrechten en juridische diensten AI recht.

Berichten met de tag Antitrust
Quantum Computing and Competition Law: Gasser, Aboy et al. Submit Comments to Italian Competition Authority AGCM

Seven scholars—Urs Gasser, Mateo Aboy, I. Glenn Cohen, Mauritz Kop, Fabienne Marco, Timo Minssen, and John Palfrey—have submitted comments to the Italian Competition Authority's public consultation on quantum computing — an early move by a major competition regulator into a market still being formed.

Five dimensions, one variable

The AGCM asked about market structure, competitive dynamics, intellectual property, consolidation, and strategic dependencies. The submission's answer: all five run through interoperability—who sets the interfaces, who governs the benchmarks, and whether early cloud-access arrangements harden into path dependence before conventional indicators of dominance ever appear. Quantum architectures are incommensurable, not merely incompatible, which makes the usual platform-market playbook an imperfect guide and benchmark governance a first-order competition issue.

Measured on the evidence

The scholars are deliberately unalarmist: the submission reports that current patent data shows no anticommons, with concentration below mature classical-computing markets. The genuine risk is narrower—rights over interface-critical elements becoming unavoidable as standards crystallize, and three compounding forms of lock-in (technical, administrative, organizational) closing a market that still looks open on paper. The team's years of groundwork, from Ten Principles for Responsible Quantum Innovation to the patent-landscape studies, supplies the empirical base.

Process before prescription

The recommendations are staged: monitoring and transparency first, disclosure-oriented safeguards where dependencies form, intervention only on demonstrated exclusion—plus competition safeguards built directly into quantum standard-setting, from ISO/IEC JTC 3 to the emerging EU Quantum Act. In a market still being formed, the scholars argue, the right question is not what the market should look like, but whether the processes shaping it remain open, revisable, and not prematurely foreclosed.

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Intellectual Property in Quantum Computing and Market Power: A Theoretical Discussion and Empirical Analysis (Oxford University Press)

Delighted to see our article ‘Intellectual Property in Quantum Computing and Market Power: A Theoretical Discussion and Empirical Analysis’ -co-authored with my talented friends Prof. Mateo Aboy, PhD, SJD, FIT and Prof. Timo Minssen- published in the Journal of Intellectual Property Law & Practice (Oxford University Press), the flagship IP peer-reviewed OUP Journal, edited by Prof. Eleonora Rosati. Thanks to the JIPLP team for excellent editorial support! Our article: https://academic.oup.com/jiplp/article/17/8/613/6646536

This piece is the sisterpaper of our Max Planck @ Springer Nature published article titled ‘Mapping the Patent Landscape of Quantum Technologies: Patenting Trends, Innovation and Policy Implications’, which we wrote in parallel. The IIC quantum-patent study can be found here: https://link.springer.com/article/10.1007/s40319-022-01209-3. Our teamwork was absolutely gratifying and we hope it will inform strategic, evidence based transatlantic policy making.

IP and Antitrust Law

Please find a short synopsis of our work below:

We are on the verge of a technological revolution associated with quantum technologies, including quantum computing and quantum/artificial intelligence hybrids. Its complexity and global significance are creating potential innovation distortions, which could not have been foreseen when current IP and antitrust systems where developed.

Potential IP Overprotection

Using quantitative methods, we investigated our hypothesis that IP overprotection requires a reform of existing IP regimes for quantum tech, to avoid or repair IP thickets, fragmented exclusionary rights and anticommons concerns, lost opportunity costs, and an unwanted concentration of market power.

Perhaps counter-intuitively, we found that there appear to be (at least so far) no such overprotection problems in the real-world quantum computing field to the extent that their consequences would hinder exponential innovation in this specific branch of applied quantum technology, as more and more quantum patent information enters the public domain.

Patents versus Trade Secrets and State Secrets

However, developments taking place in secrecy, either by trade secrets or state secrets, remains the Achilles heel of our empirical approach, as information about these innovations is not represented by our dataset, and thus cannot be observed, replicated or generalized.

Interplay between IP and Antitrust Law: Open or Closed Innovation Systems

Policy makers should urgently answer questions regarding pushing for open or closed innovation systems including the interplay between IP and antitrust law, taking into account dilemma’s pertaining to equal/equitable access to benefits, risk control, ethics, and overall societal impact. Crucially, intellectual property in quantum technology has a national safety and (cyber)security dimension, often beyond the IP toolkit.

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Integrating Bespoke IP Regimes for Quantum Technology into National Security Policy

Should countries be able to treat quantum technology the way they treat fissionable materials—suspending patents and trade-secret enforcement when national security demands it? That is the provocative proposal at the center of Integrating Bespoke IP Regimes for Quantum Technology into National Security Policy, a 2021 Stanford working paper by Mauritz Kop and Mark Brongersma, posted as a preprint. The authors argue that quantum needs innovation-policy mechanisms cut to the physics of the very small, then folded into national security law.

A bespoke regime for a dual-use technology

Quantum, the authors observe, is an early-stage family of technologies—comparable to the transistor in the 1960s—whose dual-use character spans civil benefit and military harm. Because appropriable value lives simultaneously in hardware, software, and trade secrets, a legal regime borrowed wholesale from software or biotech will misfire. The paper surveys a toolkit drawn from adjacent fields—AI, biotechnology, nanotechnology, semiconductors, and nuclear—and argues that intellectual property and antitrust law must work in concert so that quantum does not deepen existing inequalities. Their guiding stance is twofold and deliberately paradoxical: treat quantum as genuinely unprecedented, but also learn from the history of adjacent technologies. This work runs alongside the market-power analysis Kop would later develop in intellectual property in quantum computing and market power, carrying the inquiry from competition theory into the harder terrain of national security law.

Pro-quantum antitrust and democratized access

Concretely, the authors weigh pro-quantum antitrust enforcement, the waiving and pledging of IP including compulsory licenses, and the democratization of essential technology. They confront the tension honestly: leading quantum startups have relied on IP protection—especially trade secrets—to raise capital, yet enclosing the foundational concepts of quantum computation and communication risks entrenching winner-takes-all dynamics against a community consensus on the right to equal access. Beyond IP, they catalog prizes, subsidies, state funding, and education as further levers for incentivizing progress.

A new TRIPS security exception

The paper's signature proposal is a new Article 73(b)(iv) security exception to the TRIPS Agreement, giving states the strategic option to exclude quantum technologies from IP protection—mirroring how the existing exception treats fissionable materials, and capable of serving either disclosure or secrecy. Situating quantum within a longer pendulum of open and closed innovation, the authors warn against a convergence of overstretched IP rights and progress made in secret, and close with a call for further multidisciplinary research. The result is a structured agenda for designing quantum innovation policy attuned to both its physics and its geopolitics, complementing the call for a strategic technology alliance among democratic countries.

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Machine Learning & EU Data Sharing Practices

Stanford - Vienna Transatlantic Technology Law Forum, Transatlantic Antitrust and IPR Developments, Stanford University, Issue No. 1/2020

New multidisciplinary research article: ‘Machine Learning & EU Data Sharing Practices’.

Download the article here: Kop_Machine Learning and EU Data Sharing Practices-Stanford University

In short, the article connects the dots between intellectual property (IP) on data, data ownership and data protection (GDPR and FFD), in an easy to understand manner. It also provides AI and Data policy and regulatory recommendations to the EU legislature.

As we all know, machine learning & data science can help accelerate many aspects of the development of drugs, antibody prophylaxis, serology tests and vaccines.

Supervised machine learning needs annotated training datasets

Data sharing is a prerequisite for a successful Transatlantic AI ecosystem. Hand-labelled, annotated training datasets (corpora) are a sine qua non for supervised machine learning. But what about intellectual property (IP) and data protection?

Data that represent IP subject matter are protected by IP rights. Unlicensed (or uncleared) use of machine learning input data potentially results in an avalanche of copyright (reproduction right) and database right (extraction right) infringements. The article offers three solutions that address the input (training) data copyright clearance problem and create breathing room for AI developers.

The article contends that introducing an absolute data property right or a (neighbouring) data producer right for augmented machine learning training corpora or other classes of data is not opportune.

Legal reform and data-driven economy

In an era of exponential innovation, it is urgent and opportune that both the TSD, the CDSM and the DD shall be reformed by the EU Commission with the data-driven economy in mind.

Freedom of expression and information, public domain, competition law

Implementing a sui generis system of protection for AI-generated Creations & Inventions is -in most industrial sectors- not necessary since machines do not need incentives to create or invent. Where incentives are needed, IP alternatives exist. Autonomously generated non-personal data should fall into the public domain. The article argues that strengthening and articulation of competition law is more opportune than extending IP rights.

Data protection and privacy

More and more datasets consist of both personal and non-personal machine generated data. Both the General Data Protection Regulation (GDPR) and the Regulation on the free flow of non-personal data (FFD) apply to these ‘mixed datasets’.

Besides the legal dimensions, the article describes the technical dimensions of data in machine learning and federated learning.

Modalities of future AI-regulation

Society should actively shape technology for good. The alternative is that other societies, with different social norms and democratic standards, impose their values on us through the design of their technology. With built-in public values, including Privacy by Design that safeguards data protection, data security and data access rights, the federated learning model is consistent with Human-Centered AI and the European Trustworthy AI paradigm.

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