The New Space Economy: Patenting the extra-terrestrial
Can patents be enforced against spacecraft in orbit and what steps should patent holders take to maximise enforcement options on Earth?

In the words of the late great Douglas Adams, space is big. Really big. Whilst the commercial space market might not be as big as space itself, it is getting bigger all the time.

Thanks to the rise in new form factors for satellites (such as so-called SmallSats, and in particular CubeSats – a class of nanosatellites), commercial space launch numbers increase year on year, and new spaceports are emerging worldwide to service this booming industry. This includes the UK where the government has recently announced the final line-up for the UK’s first launch from Spaceport Cornwall, which will be operated by Virgin Orbit. The line-up includes a number of satellites developed and built in the UK, including the first ever satellite to be built in Wales.

The New Space Economy (as it’s being called) raises interesting questions for operators and intellectual property rights holders. For example, whether or not patents can be enforced against spacecraft i.e., artificial satellites used for a variety of purposes from observation to transportation, in orbit.

Protecting IP in space

Intellectual property rights, such as patents, are territorial in nature – they have effect only in particular states. In the case of a patented invention, the patent can only be asserted when infringing acts such as the use of a patented technology have taken place in the territory where that patent has effect. For example, a UK patent can be asserted against a third party using a patented invention within the UK, but not using the invention outside of the UK.

There are no specific laws governing intellectual property in space but the typical starting point when considering the legal situation for objects launched into space is the Outer Space Treaty of 1966 (OST), which is considered to be the foundation for international space law. The OST entered into force in October 1967 and has over 100 states-parties, including the USA, China, Russia, and the UK. The key goals for the OST were to ensure that outer space was for the benefit of mankind, that states could not lay territorial claims to outer space or celestial bodies, and to avoid the militarisation of space.

One interesting question arises: where does “outer space” begin? The OST itself does not define the threshold for outer space, and different international bodies delineate it differently. For example, the Fédération Aéronautique Internationale (FAI) defines the edge of space as 100km from the Earth’s mean sea level, whilst the US military and NASA have awarded “astronaut wings” to pilots exceeding 50 miles (80km) altitude. Practically, however, one would assume that all spacecraft operating in orbit are in outer space for the purpose of the OST. So, what jurisdictions do spacecraft pass through on their way to outer space, and what jurisdiction are they in when they get there?

Whatever boundary for outer space you choose to accept, there is general consensus that below this line is sovereign airspace, and thus is the jurisdiction of the nation which lies under that airspace. It seems reasonable, then, to suggest that a spacecraft on its way to outer space could find itself in the jurisdiction of a nation neighbouring that from which it launched. At present, most launch paths (such as those used by NASA and SpaceX from the Southern United States and Arianespace from French Guiana) gain altitude far too quickly, and do so over oceans, for this to be a significant concern.

Do spacecraft benefit from defences to infringement as ‘aircraft’?

With many new launch sites planned across the globe, it is possible that patent rights will need to be taken into account when planning launches. Many jurisdictions do have a defence in their infringement laws for aircraft passing temporarily or accidentally through the jurisdiction (Section 60(5)(e) of the UK Patents Act 1977 explicitly extends this defence to “the air space above it [the UK]”).

It may be that spacecraft in flight are considered “aircraft” in which case they would benefit from this defence to infringement. This might have implications for new and inventive methods of launching spacecraft – for example Virgin Orbit (which will operate from the UK) delivers small satellites to orbit on rockets launched from under the wing of a 747. Would a claim to this method of launch be enforceable against a launch provider if the method was performed in UK airspace? It may well be that the method would be covered by the Section 60(5)(e) defence, and a patent claim to this method unenforceable insofar as it took place in UK airspace.

Which jurisdiction do spacecraft fall under once in orbit?

Launch hypotheticals aside, we can be quite sure that once in orbit, spacecraft in outer space (including satellites in orbit) will be considered outside the territory of any party to the OST. However, Article VIII of the OST states 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”. This in essence means that a spacecraft falls under the jurisdiction of the state where it is registered (registration of objects launched into space is governed by the Convention on Registration of Objects Launched into Outer Space of 1975).

Potentially, then, this means that intellectual property rights can be asserted against spacecraft even after launch (while in outer space), according to the registration state for that spacecraft, although this has not yet been tested in the courts.

This would mean that if a spacecraft implements a patented technology, then the use of that technology on the spacecraft might constitute an infringement of the patent, so long as the patent had effect in the country in which the spacecraft is registered.

For example, the holder of a UK patent might be able to take action against the operator of a satellite which is registered in the UK, even if the satellite itself had never been on UK territory once that satellite is in orbit (e.g. if the satellite had been manufactured and launched outside the UK), because when it is in outer space it will at that point be under the jurisdiction of UK law.

Similarly, a UK registered spacecraft making its way to space would find itself subject to the UK’s jurisdiction as it entered outer space, even if it is launched from outside the UK. Taking the example of patent claims related to methods of launching and manoeuvring spacecraft, the claims might be infringed if a spacecraft performing a patented manoeuvre is registered in the UK, and as long as the manoeuvre is performed in outer space.

Counter-intuitively, in cases where the spacecraft starts in UK airspace, enforcement of a patent right against the spacecraft might be possible only after it enters outer space – the spacecraft would have inherited UK jurisdiction via the OST, but would also have lost its aircraft defence with which it previously avoided infringement because it is no longer in UK airspace.

Furthermore, since Article VIII of the OST is, in fact, broad enough to cover any object launched into outer space, it is not only inventions related to reaching and navigating space that need consideration. Each ”room” of the ISS has a jurisdiction based on its registry, as would any structure used to support a colony on Mars, for example. There is relevance here, then, for any invention which might be used within such space-going objects, for example for research purposes or for sustaining human life in space.

Enforcement on Earth

Putting aside the (for now) untested assertion of patent rights against infringements taking place in space, patent holders should keep in mind tried and tested enforcement against infringements taking place here on planet Earth.

Patents can be enforced against manufacturers of patented products. Therefore, patents which have effect in the place of manufacture of an infringing spacecraft can be used to prevent the manufacture of the spacecraft, and its onward sale or export. Patents can also be used to prevent the keeping or use of infringing spacecraft. This means that if a patent has effect at a launch site, the patent holder may seek to prevent a party (including the launch company itself) preparing the spacecraft for launch.

In cases where the spacecraft will be controlled from, or communicate with, sites on Earth, then patents which cover methods of controlling or communicating with the spacecraft may be used against infringers within the territory of that patent (on Earth). Even where patent claims set out methods which include steps carried out on the ground and some steps carried out in space, then it may still be possible to enforce these claims against terrestrial infringers in some jurisdictions on the basis of partial infringement of the patent.

How to maximise enforcement options

With all this in mind, what are the best practices for intellectual property holders who want to maximise the options for enforcement against spacecraft both before and after launch?

At the drafting stage, there are some considerations for the drafting of patent claims which might help to maximise the practical scope of protection.

It is important to make sure that any patent claims, as far as possible, cover the technology in a non-operational (i.e. pre-launch) state, so that the patent can be enforced against parties dealing with the spacecraft before it is launched. For inventions which are, at least to some extent, methods, this means claiming an apparatus configured to perform the method, such that a spacecraft sat on a launch pad infringes a claim of your patent, rather than relying on infringement beginning at altitude.

For example, for spacecraft which will reconfigure themselves in space (e.g. deploying solar cells or antennae in orbit), then the claims should specify the structural configuration of the spacecraft before launch, if possible. Both conventional product claims (e.g., an arrangement of solar cells and motors configured to deploy the cells) and generic processing means-plus-function claims (e.g. a computer readable storage medium (CRM) comprising instructions to deploy solar cells) may be valuable. A satellite intending to deploy its solar cells using the protected method might then infringe both product claims off the assembly line and on the launch pad. In addition, the component parts of the satellite, which would almost certainly be manufactured separately, could individually infringe certain claims of the patent. The control circuitry, for example, might infringe the CRM claim as soon as the instructions are loaded onto it, possibly before ever reaching the rest of the satellite.

If the technology interacts with ground stations or terrestrial customers, it is best practice to include claims for ground-based technology and/or methods executed on the ground. As far as possible these claims should set out only the steps performed Earth-side, to avoid having to rely on partial infringement of the claims.

When it comes to filing strategy, careful consideration should be given to which jurisdictions to seek patent protection in to maximise the options for its enforcement.

First, when developing a filing strategy it is of course important to consider where a potentially infringing spacecraft might be manufactured. For many spacecraft, component parts will reach various stages of completion in a number of different jurisdictions. It may be wise to prioritise patent filings, and even certain claim categories within each filing, in specific jurisdictions (for example, CRM claims in semiconductor giants Taiwan and Korea).

Second, consideration should be given to where an infringing spacecraft might be launched from to maximise your options for enforcing the patent against the spacecraft before it is launched. At present, the most active commercial spaceports are in the US (SpaceX, ULA and others), China (CALT), Kazakhstan (Roscosmos), and French Guiana (Arianespace) – a department of France (and therefore covered by patents having effect in France). However, it is anticipated that new players in the space launch facilities market will make available launches from other countries around the world, particularly for servicing the small payload market. Perhaps closest to market is Electron, operating from New Zealand, but there are plans for Spaceports in a number of European countries where it is anticipated that Andøya Space (Norway), Esrange Space Centre (Sweden) and Spaceport Cornwall (UK) will provide satellite launch services within the next few years.

Third, as explained above, it may also be possible to enforce patents against spacecraft in orbit, according to the state in which they are registered. Therefore, consideration should be given to where any potentially infringing spacecraft may be registered once it is operational, which is usually the state where the owner and/or operator of the spacecraft is based.

So how easy is it to enforce a patent against spacecraft and related technologies? The answer comes down to the drafting and filing of the patent in question. By adopting the strategies outlined above, patent holders can maximise protection for their technologies on planet Earth and beyond.