With the first space hotel on the horizon, space tourism is heading into reality from fiction. Tourism is but one development in the multi-faceted space commercialization. In a recently released report, McKinsey predicts that the global space economy will be worth an eye-popping $1.8 trillion just after the next decade.
The challenging environment of outer space bears limitations but also brings endless possibilities for innovation. However, just as space travelers need equipment unique to space, inventions created for outer space also need different patent strategies to minimize the risk.
While patent experts agree that a perfect solution to protect outer space inventions is still beyond the horizon, understanding where the loopholes lie and patenting strategically can create an advantage in maximizing the protection for inventors.
Blurred Borders
When creating rules for complicated areas, it is often difficult to foresee how those rules will fully interact with other complicated areas. This can create unintended loopholes, especially when those areas diverge and develop rapidly. That is precisely what has happened at the intersection of patent law and space law.
Patent systems are territorial in nature, meaning that a valid patent obtained in one country or region cannot protect the owner beyond its borders. Conversely, territorial boundaries in space are blurred because “the exploration and use of outer space” should be “the province of all mankind,” as set forth in the most widely adopted international space treaty, the 1967 Outer Space Treaty (OST).
To be clear, under the OST, nations still have jurisdiction and control over the objects they launch into space, which is later elaborated by another international space treaty, the 1972 Liability Convention. However, this creates confusion regarding the jurisdiction in collaborations involving more than one country, as neither treaty adequately addresses the intellectual property rights in space. This means that potential infringements in outer space, even those that would be liable if they had occurred on Earth, could escape liability because of a lack of jurisdiction or uncertainty about whether the protection can reach the potential infringement.
Launching-State Limitations
Later treaties and laws mitigated the issue but did not completely resolve it. Under the 1974 Registration Convention, space objects should be registered by a “launching state.” It could be either the country (or region) that launches or procures the launching of the object or the country (or region) whose territory or facility is used in the launch.
For example, if country A wants to launch a satellite and uses country B’s facility, either country could be considered the “launching state,” and they need to work together to determine who will register that satellite. Whichever country “registers” the object has jurisdiction and control over it.
Thus, if a registered object infringes on a patent in the launching state, the infringer could be held liable under the law of the launching state, even if the infringing act occurs in the space instead of in that country. You may wonder, what if the original inventor does not have a patent in that country? This is the Achilles’ heel for patent protection under the Registration Convention, and the answer is that the infringer might escape liability.
U.S. Limitations
In 1990, the United States extended more patent protection from its geographic boundaries to space through the U.S. Patents in Space Act (codified as U.S.C. § 105) (the Act), but it has its limitations. The extension does not protect the patent holder from a competing object “registered” in another country or region unless that country and the U.S. specifically so agreed in an international agreement. Therefore, the loophole persists.
At this point, it appears that the only reassuring solution is to get patent protection in every one of the 72 countries that ratified the Registration Convention. However, even disregarding the possibility of a rejected patent, any patent applicant would understand how unrealistic and costly that would be. If an inventor does not want to go to that extreme, the following combined strategies could bring hope for increasing patent protection.
Space Strategy
First, if innovative components of a space invention need to be processed on Earth before launching, patents protecting those components will more likely hold an infringer liable. A strategic claim can be drafted after careful consideration of where potential infringements could occur.
For example, a patent claiming a space invention’s manufacturing process on Earth may make it easier to determine the jurisdiction and protection scope if infringed, compared to a patent claiming only the use of that invention, which may only occur in outer space.
3D Printing on the Moon, and Other Exceptions
However, some manufacturing processes are designed to happen in space, like the 3D printing process on the moon, as described in a recent article by my colleagues Kate Nuehring Su and Ria Patel. In that case, a layered patent protection should also be considered.
To take advantage of the extension of space patent protection in the U.S., filing for a U.S. patent can be beneficial, especially if the invention will be “made, used, or sold in outer space on a space object . . . under the jurisdiction or control of the United States.”
Additionally, to minimize the risk posed by the “launching state” loophole, patent filing should prioritize spacefaring countries where a potential infringer is likely to launch space objects.
Europe’s One-Stop Shop
Even though there is no universal patent law or jurisdiction, a quasi “one-stop shop” exists for many European countries: the Unitary Patent System, which went into effect in June 2023 and currently has 17 member states with the potential to expand.
The Unitary Patent System allows a patentee to get “uniform patent protection” by submitting a single request to the European Patent Office (EPO). While a bundle of national patents under PCT or EPC still needs to be enforced separately, the unitary patent can be enforced through a single court, the Uniform Patent Court. Because such an approach also blurs the territorial boundaries similar to how it operates in space, it is considered one step closer to combat the patent protection loophole for space inventions.
Uncertainties Remain
News outlets have spotlighted a newsworthy space patent infringement suit in 2019. A startup company, Vector Launch, filed a patent infringement lawsuit over micro-satellite technology against Lockheed Martin. However, this suit did not allow us to glean any guidance from specific court decisions or reasoning because Vector withdrew the suit before it made it into the courtroom and instead turned to negotiating with Lockheed.
Until more explicit guidance is provided by legislation or judicial decisions, we are treading through the uncertain water of space patent protection with some foreseeable obstacles. However, applying existing patenting expertise strategically can still effectively safeguard inventions, offering reassurance and resilience in the face of these uncertainties. This proactive approach enables innovators to confidently protect their intellectual property, ensuring that potential hurdles do not deter progress or innovation in space exploration and technology.
