Patenting fusion
With the growing excitement around fusion power, we consider the value of pursuing patent protection in this sector

Once consigned to the realms of science fiction or dismissed as being perpetually 20 years away from fruition, there is a growing hope that fusion power may be on the path towards commercialisation. In a field traditionally dominated by large, state-funded efforts, a number of entities in the private sector are taking different approaches to surpassing the “breakeven” point, where a useful amount of energy can be extracted from a fusion reactor compared to the significant amounts of energy required to initiate and sustain the reaction. Achieving this goal brings the promise of clean and green power, free from reliance on the uncontrollable natural phenomena required by traditional renewable power sources (e.g. wind, sunlight, etc.), and free from the unwanted radioactive waste resulting from traditional nuclear power generation. Given the universal need for clean and green power, if and when the fusion code is cracked, the whole world will want in.

Due to these advantages, achieving this goal naturally also brings the promise of commercial opportunities. Indeed, a recent article in Nature notes the significant amount of funding obtained by the private fusion sector, said to sum to more than two billion dollars according to an October 2021 survey by the Fusion Industry Association. In the three months following the survey, this total has more than doubled thanks to billion-dollar backing for both Helion Energy and Commonwealth Fusion Systems (CFS), The Engineer reports. Why the sudden cash injection to the private sector? A recent flurry of technological breakthroughs is likely to be playing a part; the Joint European Torus (JET) made national headlines in February 2022 by comfortably beating its previous record for production of sustained fusion energy.

JET’s big brother, the much larger ITER reactor, is slated to begin testing in 2025. ITER (a breath of acronym-free fresh air – ITER translates as “the way” in Latin) is designed in a similar fashion to JET, and aims to be the first fusion device to produce net energy. The recent success of JET makes this claim sound all the more reasonable. The US is not far behind; its National Ignition Facility (NIF) at the Lawrence Livermore National Laboratory produced a sizeable 1.3 million joules of fusion energy in August 2021.

Although JET, ITER, and NIF are state-funded, the public sector does not have a monopoly on the buzz around fusion. The private sector has expanded in recent years, with the main players including: TAE Technologies, Helion Energy, Commonwealth Fusion Systems, General Fusion, and Tokamak Energy. As the CEO of Commonwealth Fusion Systems has noted, “Companies are starting to build things at the level of what governments can build”.

Due to the level of investment and opportunity for profit, it is not surprising that a large number of patent applications are filed in the field of fusion power. Analysis of patent families owned by the main players listed above shows a significant increase in the number of filings over the last 5-10 years. Tokamak Energy has largely led the way, building a large portfolio in a short space of time. Understandably, given where much of the research and development in this field takes place, there is a bias for all of these applicants towards filings in the US and Europe.

Patent families owned by selected fusion companies grouped by filing date. A decrease in the number of families in the last 11/years is expected due to the lag between filing and publication. Data and grouping of patent families obtained from Orbit Intelligence.

The International Patent Classification (IPC) provides another way of reviewing patent filing trends, where code G21B covers fusion reactors. Analysis of PCT applications classified under this code filed in the last 20 years shows a slight increase in the number of recent filings, likely reflecting the expansion of the private sector noted above (e.g. the peak of filings in 2018 coincides with the peak of Tokamak Energy’s filing strategy). Other busy applicants in this field include academic or non-profit institutions – from the US, the Lawrence Livermore National Laboratory and the University of California, and from France the Alternative Energies and Atomic Energy Commission (CEA / Commissariat à l’énergie atomique et aux énergies alternatives). This likely reflects that fusion power has traditionally relied on state funding, e.g. the ITER and NIF experiments noted above.

PCT applications classified under IPC code G21B. A decrease in the number of families in the last 11/years is expected due to the lag between filing and publication. Data obtained from Orbit Intelligence.

Delving deeper into the IPC, it is of note that there is a dedicated code for inventions in the field of “cold fusion”. Cold fusion is a proposed form of fusion said to occur at much lower temperatures than those typically used in fusion reactors. There was a surge of interest in this concept in the late 1980s but it is now typically viewed with scepticism by the scientific community. IPC code G21B 3/00 covers cold fusion, described as “low-temperature nuclear fusion reactors, e.g. alleged cold fusion reactors”. It may well be that the use of the word “alleged” indicates a degree of suspicion from the writers of the IPC over whether cold fusion is possible. Indeed, other uses of the term “alleged” in the IPC are for fields firmly within the realms of science fiction, namely, various forms of perpetual motion machines (F03B 17/04, F03G 7/10, H02K 53/00, H02N 11/00, and lastly H02K 53/00 “alleged dynamo-electric perpetua mobilia”), and also alchemy (G21G 5/00: “alleged conversion of chemical elements by chemical reaction”). Accordingly, it could be that the classification of an invention under code G21B 3/00 as relating to cold fusion might cast doubt on whether the invention can be repeated, perhaps leading to objections of an insufficient disclosure of the invention or even a lack of industrial applicability. However, analysis of patent applications classified under code G21B 3/00 shows that this does not necessarily signal the end of the road, as some such applications have been granted, although there are differences in approach depending on the patent jurisdiction.

Although there is a noticeable upward trend in the number of patent filings in the fusion field from the private sector, the total number of filings remains relatively low when compared to many other fields also boasting investment, public interest, and potential for growth. A field such as fusion is unlikely ever to reach the number of filings seen in sectors such as medical technology or consumer electronics, where the number of units sold and relative similarity between competing products demand a bristling patent arsenal. That said, for only one of fusion’s private-sector pioneers regularly to have double-digit filing years seems amiss. Why might this be?

It is possible that the value of a fusion-related patent is somewhat limited by the number of potential infringers, and the divergence of approaches being taken. While all of the entities discussed in this article, private or state-funded, are similar enough to be grouped under the umbrella-term “fusion power”, the techniques each is investigating are, in some cases, quite different. Take JET/ITER and NIF, for example, as the two leading state-funded projects of Europe and the US, respectively: one aims to confine nuclear plasma with magnets; the other directs the world’s most energetic laser at plastic spheres. How relevant is one’s innovation to the other?

Another possibility is that the patent term of 20 years is somewhat off-putting for this industry. The lead-time on new technology making its way into research facilities is long enough: ITER’s design phase was completed in 1998, but consistent Deuterium-Tritium Operation is planned to begin as late as 2035. Even if the private sector halved this timescale, a fusion patent might provide only one year of useful protection. Perhaps amassing a large portfolio which relies on net energy fusion being cracked and commercialised within 20 years of making your filings is less attractive than funnelling more investment into R&D. Significant delays between filing and commercialisation are not unique to fusion; in the pharmaceutical space, for example, clinical trials and regulatory approval can take up an appreciable amount of the 20-year patent term. Pharmaceuticals, however, can benefit from specific additional protection in the form of Supplementary Protection Certificates (SPCs), which extend patent term by a maximum of 5 years beyond the original 20. Given the paramount importance of solving the global energy crisis, an equivalent term extension available to fusion innovators does not seem unreasonable, although none appears to be calling for it at present.

With all of that said, a convincing case for filing fusion patents can still, and should, be made. It can certainly be argued that the potential value of strong protection in this field far outweighs the risk that commercialisation of the invention takes time to materialise. Indeed, if fusion power is now actually 20 years away, rather than being perpetually 20 years away, patent families filed now and covering core technologies may prove to be exceptionally valuable in their final few years of term, precisely when the market is clamouring for this new-fangled fusion power.

On divergences in approach, while this is true for now, one method will be first to achieve net energy, and it is not unreasonable to expect a significant narrowing of the breadth of approaches when this comes to pass. Moreover, notwithstanding divergent approaches, private fusion entities should appreciate that they are not alone, and be prepared to use their patent portfolios to secure further investment ahead of their competitors. Indeed, although private investment at the present stage may be sufficient to bring fusion power close to commercialisation, actually achieving commercialisation, i.e. getting to the stage of building fusion reactors at a scale to replace fossil-fuel power stations, may well require significant state investment. A patent monopoly on core technology gives governments a reason to select one supplier over another rather than base a decision solely on price. Technological breakthroughs may be decisive for winners and losers, but only if they are well protected.

Also important to note is that innovation in the fusion sector may have relevance outside the construction and operation of fusion reactors. Parallels can be drawn between fusion and astronautical engineering in this regard. NASA is famous for commercialising its space-intended, but accidentally-otherwise-useful technology, particularly via licensing. The full list of such technologies is as extensive and varied as it is highly profitable: LASIK technology; scratch resistant lenses, freeze drying processes; enriched baby foods; and aircraft de-icing, to name but a few. While the demands of space travel may require invention in a broader range of fields than fusion (we’re not holding our breath for ITER’s line of baby foods), fusion is pushing the envelope in vacuum generation, superconducting magnets, heat resistant coatings, and control systems. A NASA-style trickle down of this cutting-edge technology to adjacent commercial sectors, ready to implement the technology immediately, should be possible and lucrative. A brief review of applications owned by the five private entities above suggests that such a strategy is at least being considered; a recent Tokamak Energy Ltd application is pursuing a superconducting electromagnet “in particular, but not exclusively” for use in tokamak plasma chambers, and independent claim 1 to the electromagnet makes no mention of a tokamak. Patents based on fusion research but not limited to fusion may provide valuable additional income streams.

There appears, therefore, to be value in pursuing patent protection for at least some of the inventions generated on the road to achieving workable nuclear fusion. Moreover, given the complexity of fusion reactors, it is likely that innovators will amass a significant amount of “know-how” in the finer details of what is required to make their individual designs work. Where patent protection is not pursued, it would be advisable for innovators to put in place robust policies for identifying and protecting such know-how as trade secrets. For more information on trade secrets see our article here, the first in a series of articles on trade secrets and confidential information. Complementing trade-secrets with patent protection for key concepts and technology with application outside fusion may well be the optimal strategy. Moreover, private fusion companies should pay close attention to their competitor’s filing strategies, and be prepared to take action against patents which may affect their freedom to operate in this lucrative sector.