TAKEAWAY: The Patent Trial and Appeal Board’s analysis in Ex parte Zhang provides insight on the USPTO’s examination of patent eligibility for claims using quantum computing.
Quantum computing is an emerging technology that the USPTO has identified as a focus of efforts to incentivize innovation through IP rights. At the same time, such emerging technologies must meet patent eligibility requirements. Ex parte Zhang (Appeal 2025-000614; Sep. 22, 2025) provides an example of how the USPTO may scrutinize claims that use but do not necessarily improve upon quantum computing.
Ex parte Zhang concerns U.S. Application No. 17/651,277, in which the claims pertained to a method for calculating risk using qubits of quantum circuits to represent risk levels. The examiner had rejected the application under 35 U.S.C. § 101 as directed to an abstract method of organizing human activity without significantly more, and therefore patent ineligible. On appeal, the Patent Trial and Appeal Board (PTAB) agreed with the examiner. In their analysis, the PTAB referred to the ’277 application’s background discussion, which describes the economic practice of “deriving a credit rating for a financial instrument.” The PTAB reasoned that the claims of the application recited a fundamental economic practice by claiming “a method for calculating risk,” where “factors,” “risk levels,” and “classical parameters” were used to generate a “risk value.”
The PTAB further explained that courts have resolved the patent-eligibility determination by inquiring whether a claimed invention improves computer technology or merely uses computer technology. The PTAB applied a similar framework to ask whether the claims of the ’277 application improve quantum computing technology or merely use it. Ultimately, the PTAB determined the latter. While the applicant contended that, relative to traditional approaches, the “invention incorporat[ed] significantly more factors for a rated entity,” the PTAB explained that “[q]uantum computers exploit the unique, non-classical properties of the quantum systems from which they are built, allowing them to process exponentially large quantities of information in only polynomial time,” as described in the ’277 application. Accordingly, the PTAB concluded that the ability to analyze more factors results from the use of quantum computing technology—not the improvement of such technology. PTAB further provided that the mere use of computing technology to speed up and/or automate an otherwise abstract idea is not sufficient to render claims patent-eligible under 35 U.S.C. § 101.
After the PTAB’s decision, the applicant amended the claims to include details regarding quantum computing architecture, which the examiner determined were sufficient to overcome the rejection under 35 U.S.C. § 101.