18 November 2021

Patents – To Infinity and Beyond?

Can territorial rights provide protection in outer space and how can space inventions be best protected?

It is difficult not to have seen the headlines over the last few months: Billionaires go to space! It is a signpost for space becoming more accessible. It may still seem a rather distant prospect for most, but the achievement of private companies such as SpaceX, Blue Origin, and Virgin Galactic who have demonstrated their reusable space technologies launches humanity closer to affordable commercial space travel.

A new space race?

The reasons that the space industry is making the giant leap towards affordable commercial travel is down to the huge amounts of time and money invested into the projects by private companies – a shift from the old model of solely state-backed projects. As the private companies invest more and more time and money into the technologies that are making all this possible, they are also increasingly keen to protect their intellectual property rights.

And in some cases, the application for intellectual property rights appears to be an attempt to frustrate competitors in their endeavours to reach the cosmos. For example, Blue Origin filed an application for a patent back in 2009 for the sea landing of space launch vehicles and associated systems and methods (US18724309), which was granted in 2014.

However, this may seem a little odd as it is SpaceX who is more closely associated with sea landing its reusable rockets. SpaceX’s business model was essentially formed around landing its test booster stages on sea-faring platforms and the granted patent may have essentially prevented SpaceX from operating. So, SpaceX had to do something to prove the patent was invalid. In fact, the lawyers for SpaceX filed two challenges against the patentability of Blue Origin’s patent, one citing prior art from 1998 and the other arguing that the technology disclosed in the patent was “old hat at best by 2014”. Blue Origin eventually accepted defeat and had most of its claims cancelled, clearing the way for SpaceX to continue to operate its sea landing rockets.

The trend toward reusable space vehicles provides an opportunity to maximise the potential of intellectual property rights. Reusable technology can cut the cost of space flight by millions of pounds and preventing a competitor from being as efficient evidently puts the rights holder at an advantage.

However, the principle of intellectual property rights, such as patents, is that they are only enforceable within the territorial boundaries of the countries designated. This raises the question: how do you protect inventions in space?

Terrestrial law in outer space?

At first glance, there is a conflict between intellectual property rights and international space law. Intellectual property rights are monopolistic in nature and exist within the territorial boundaries of a state. However, Articles I and II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies prescribe that the exploration and use of outer space for the benefit of mankind and the non-appropriation of outer space by any nation are fundamental principles under international space law. At least the non-appropriation principle appears to pour cold water on the idea of monopolistic rights in outer space.

As you might expect, international space law is as complex as the technology that enables us to get there. When it comes to intellectual property rights and specifically, patents, there is no law, treaty, or convention that has been tailored to deal with the apparently contrasting nature of space and intellectual property. However, there are a few pieces of legislation that we can use to guide us from our territorial rights to extra-terrestrial rights.

The same legislation that appears to discredit the application of monopolistic rights to space sets out in Article 8 that a state does retain jurisdiction and control over objects it sends into outer space. Thus, a solution to bridge the gap between monopolistic rights and the non-appropriation of space would be to make patent law enforceable for objects in space that are under the jurisdiction and control of a given country. In some ways, this is analogous to having an embassy in another state, but in this case the other state is outer space.

In fact, this is exactly what the United States did in November 1990. The US Patents Act states that any invention made, used, or sold in outer space on board a spacecraft that is under the jurisdiction or control of the US is considered to be made, used, or sold on US territory, except where an international agreement has been entered into with states. Similar provisions exist in French patent law.

International agreements are common in joint projects, such as, for example, the International Space Station (ISS). The ISS is effectively a modular spacecraft that consists of modules provided by different partners. Each partner that supplies a module registers their flight elements and devices and therefore retains jurisdiction, control, and ownership over them. The law here is governed by an Intergovernmental Agreement and Article 21 specifically recognises the jurisdiction of each partner’s courts. This allows the national law of the partner to be applied in its module. Thus, on the ISS at least, if an invention is realised in, for example, a US space element, the US Patents Act will apply to the invention as it is deemed to have occurred on US territory. In addition to the US, Germany also modified its patent laws to specifically ensure they could be applied on board a European Space Agency registered module.

Optimising protection for space inventions

As you may have noticed, the term “register” has come up a couple of times and it actually has a key role in determining which set of national law applies to a space object or invention. The Registration Convention of 1975 provides the framework for the registration of space objects and provides that when a space object is launched, a launching state shall register the space object. However, the launching state encompasses more than merely the state which launches the space object. Alternatively, the launching state can be the state which procures the launching of the space object, the state from whose territory the space object is launched, or the state from whose facility a space object is launched.

The definition of a launching state appears to create an interesting loophole in monopolistic rights systems covering outer space, such as the US. For example, patent infringement on an invention in outer space can be avoided by registering the space object in a launching state in a country where the invention has not been patented.

This can make it difficult for patent owners to enforce their rights in space. Therefore, entities applying for patent rights have to take extra care when developing their strategy. For example, filing applications in each spacefaring country should be prioritised as everyone could use these countries as the registered launch state. Technologically advanced countries which may wish to go to space and countries with ideal launch locations should also be considered for patent protection. This being said, it should be remembered that there may be issues in providing the evidence that a space object is infringing a patent, especially if the space object does not return to Earth.

Therefore, as the law across the globe is not unified and does not provide water-tight protection to space inventions, it appears that the best way to protect intellectual property rights for space inventions is still here on Earth. That is, applicants may prefer to focus on drafting patent claims that are infringed in the terrestrial territories of the states in which space inventions are manufactured. This, of course, does not cover infringing activities that take place in space, but terrestrial protection may be enough to prevent an infringing act being possible in space by preventing the means to infringe from leaving Earth. However, it may be the case that the national law from the country in which the space object is launched provides for exceptions to vehicles that temporarily enter that country’s territory (air, space, and territorial waters included) that a party could try to take advantage of. This temporary entrance usually does have to be lawful. Thus, such a defence, like much of the scenarios discussed herein, is yet to be formally decided by a real-life infringement case.

The above would appear to place more importance on intellectual property rights that relate to returning and reusable technology, mainly due to the presence of fewer hurdles to being able to detect and prove infringement. Therefore, in some ways, a specific set of laws for intellectual property rights may not be as important as once thought, until a mechanism for accurately detecting infringement in space is developed.

Outer space: the final frontier for patent law

In view of the above, it is clear that the most comprehensive intellectual property law that can be applied to space inventions is terrestrial law where the majority of space inventions are manufactured. Therefore, particular care should be taken in the choice of claim language in order to not only protect a space invention in space but also on Earth. Currently, this terrestrial law also provides more certainty to applicants as it is well established. The application of the law to the scenarios discussed above specifically related to inventions made in space and the registration of a space object in alternative registered states in an attempt to avoid infringement is less established and will require court judgments to set clear precedents.
Until clear precedents have been set out by the various courts around the world or until a specific piece of legislation dealing with space inventions in outer space is developed, it appears that the final frontier for patent law will remain outer space.