The global migration to post-quantum cryptography (PQC) is no longer a theoretical exercise. It is actively underway. Following the National Institute of Standards and Technology’s (NIST) release of its finalized FIPS standards for quantum-resistant algorithms, including the Module-Lattice-Based Key-Encapsulation Mechanism Standard (ML-KEM) and the Module-Lattice-Based Digital Signature Standard (ML-DSA), commercial entities are engaging in a massive infrastructure overhaul.
Yet, for general counsel and IP attorneys, cybersecurity and technical feasibility are only part of the challenge. When transitioning vital digital infrastructure to a new cryptographic standard, intellectual property can become a significant roadblock. Certain PQC algorithms—most notably CRYSTALS-Kyber, now standardized as ML-KEM—have been the subject of third-party patent claims. To remove that obstacle to widespread adoption, NIST secured two broad, royalty-free patent licensing agreements for the benefit of implementers. But these licenses have important limitations. Understanding their boundaries, mechanics, and legal protections is crucial for any organization mapping out its post-quantum migration strategy.
The NIST agreements neutralize the risks associated with the licensed patent portfolios, but they are not a blanket freedom-to-operate for every ML-KEM product. Other potentially relevant patents may still require consideration, particularly where an implementation departs from the standardized algorithm or incorporates additional proprietary technology.
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