Solar panels positioned so that they are always generating energy at the maximum possible rate – it sounds too good to be true. Yet this is precisely the vision behind space-based solar power (SBSP), where solar panels are positioned in orbit to capture sunlight continuously under perpetual solar noon. With constant sight of the sun, SBSP overcomes the intermittency of terrestrial renewables and therefore provides a route for renewables to provide continuous baseload energy.
Although still at the frontier of feasibility, SBSP is moving rapidly from science fiction towards commercial possibility. Advances in reusable launch systems, satellite technology and wireless energy transmission – combined with growing global demand for clean energy – are bringing the concept within economic reach.
With many of the underlying technologies now in development, including innovations such as those in Space Solar’s CASSIOPeiA project, this is a pivotal moment to secure intellectual property protection. However, doing so presents unique challenges, not least because of the extra terrestrial nature of these systems. So, how can the patent system protect space-based solar innovations?
The cosmic challenge – patenting space-based technologies
Much of the innovation underpinning SBSP lies in power transmitters, solar panels and assembly technologies – all intended for use in space. As such, protecting such innovations relies, at least to some extent, on whether space-based implementations can constitute infringement under terrestrial patent systems.
As discussed in our previous article, the fundamental challenge for enforceability of patents in respect of space-based infringements is that there is no specific law governing intellectual property in space. This raises questions around jurisdiction – which country’s laws apply to orbiting spacecraft, and how can patents be enforced in this context?
The Outer Space Treaty 1967 (OST) offers a starting point, stating that “[a] State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body”. Under the Convention on Registration of Objects Launched into Outer Space 1975, such registration is required by the “launching state”. In principle, this means that when a patented technology is implemented on a spacecraft in orbit, and that technology is patented in the spacecraft’s nominal “launching state”, such an implementation could constitute an infringement under the laws of that state. However, this has not yet been tested in the courts.
A further important consideration is that many SBSP concepts rely on in-orbit assembly rather than launching a single monolithic spacecraft. These very large satellites are envisaged as comprising hundreds of thousands of small, identical modules manufactured on Earth and assembled in space by autonomous robotic systems, which would also be responsible for periodic maintenance. Although this modular, robotic assembly approach is essential to commercial feasibility, enforcing patent rights against assembly or maintenance activities occurring wholly in orbit would again depend on the untested jurisdictional route provided by the OST and Registration Convention. This emphasises the importance of securing protection for components, such as the modules themselves, and for terrestrial and pre-launch assembly steps, where enforceability is less legally uncertain.
These enforcement uncertainties also make it crucial to consider where protection is obtained. For SBSP systems, the manufacturing, storage and pre-launch assembly steps typically occur in jurisdictions with space launch capabilities, and these are therefore key territories in which patent protection should be sought. These jurisdictions include the US, China, Russia, Kazakhstan, Japan, South Korea, New Zealand and Europe (notably Arianespace (FR), Esrange Space Centre (SE), Andøya Space (NO), and Spaceport Cornwall (GB)). Patents covering components, systems and methods of manufacture or assembly within these territories may also prove more straightforward to enforce than those directed solely to orbital implementations/uses, particularly given that in-orbit robotic assembly remains legally untested under the OST framework.
In addition, thoughtful claim drafting strategies may be used to secure protection for the SBSP generated energy itself, even when key portions of the process occur in space. For example, process claims that encompass coordinated steps performed partly aboard an orbital spacecraft and partly on Earth, or that define the generation of energy ultimately delivered to the Earth’s surface, may offer valuable routes for enforcement. In this way, commercially valuable IP can be obtained for space based solar technologies.
A foothold on Earth – protecting ground stations
While the orbital components of SBSP systems pose challenges for patent protection, the terrestrial ground stations that receive and convert energy offer a clearer, more traditional path to protection. These terrestrial systems depend wholly on the way in which energy is transmitted back to the Earth’s surface but likely include rectenna arrays for converting beams of microwave radiation into electricity.
The jurisdictions where protection for such technologies may be particularly useful include:
- Locations in which remoteness or geographical limitations preclude the development of traditional electrical grid infrastructure and/or traditional solar power, such that SBSP beamed energy may be particularly useful.
- Countries with large coastlines where rectenna arrays can be constructed offshore. With abundant offshore space and existing grid interconnect facilities in these offshore areas (e.g. for existing offshore wind farms), the UK is an ideal candidate for offshore receipt of SBSP energy. However, this offshore use of patented technology poses its own enforcement challenges, as discussed in our earlier article.
Securing the future of solar power in space
The present day is the ground floor for SBSP – now is a crucial time to secure protection for the innovations that will underpin the future of SBSP. As with all emerging technologies, a successful IP strategy must be closely aligned with the intended use and the commercial pathway for the technology. By targeting jurisdictions with the space launch capabilities and/or a geographical incentive to use SBSP, and by tailoring patents to cover likely infringement scenarios in those jurisdictions, innovators can position themselves to gain an early competitive advantage in this new frontier.
At Carpmaels & Ransford, our multi-disciplinary Energy team has extensive expertise across a broad range of renewable energy technologies and is experienced in handling global patent portfolios. We are uniquely positioned to help innovators secure commercially valuable protection for their technologies, ensuring they are well-guarded and ahead of the curve in rapidly evolving markets – on Earth and beyond!