There is a rapidly growing constellation of technology orbiting the Earth. From powering navigation systems that we take for granted such as GPS, to allowing us to peer into the cosmos, significant investments in launch capabilities and space technologies are fuelling massive growth and enabling greater access to space. Estimates suggest that by 2040, the global space industry will grow from $350 billion (USD) in 2020 to be worth $1 trillion (USD).1
On Earth, intellectual property (IP) law, and in particular patent rights, provide inventors with a means to protect their inventions. With the rapid growth in new space technologies and innovation, researchers, inventors, and companies need to consider how they can protect their IP above Earth's atmosphere and also on any journey it takes to get there.
So, are patents a viable option for protecting space technologies? What issues should someone patenting space technologies consider? In this article, we explore the legal rules that apply in space, how space inventions can be protected using patents, and some of the practical considerations involved with obtaining and enforcing patents over space technology.
Which countries' laws are relevant for space technologies?
Terrestrial patent protection is a country specific phenomenon
In most countries,2 inventors can obtain patents to protect new inventions when they meet specific national legal requirements. Ownership of a granted patent provides legally enforceable monopolistic rights over who can use or exploit the patented invention, but only within the jurisdiction of the country in which the patent is granted. In Australia, those rights include the right to make, sell, hire, use or import the patented technology.3 Separate registration is required in each country in which an inventor wishes to enjoy patent rights.
On the ground, obtaining and enforcing IP rights, such as patent rights, is regulated by the law of the nation within whose territory those activities will occur. However once an invention involves space, the legal considerations become more complex. Space, like international waters, is not the territory of one nation. So how do you work out which country has legal jurisdiction?
Three key international agreements, all ratified by Australia, shed light on this question. They include:
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies ("Outer Space Treaty" Entered force: 1967);
- Convention on Registration of Objects Launched into Outer Space ("Registration Convention" Entered force: 1976); and
- Agreement Governing the Activities of States on the Moon and Other Celestial Bodies ("Moon Agreement" Entered force: 1984).
The Outer Space Treaty makes it clear that nations are not permitted to simply assert that space or celestial objects are their territory and subject to their jurisdiction.4 It sets out that the law that applies in space varies depending on the Earth origin of objects put into or constructed in space. Nations are responsible for their own national activities in outer space, whether carried out by governmental agencies or non-governmental entities.5 Specifically, the nation on whose registry a space object is recorded (a process explored in the Registration Convention) retains jurisdiction over that object and personnel travelling with it while in outer space or on a celestial body.6 Mirroring this, the Moon Agreement affirms that each nation retains jurisdiction and control over their personnel, vehicles, equipment, facilities, stations and installations on the Moon.7
These provisions suggest that where constituents of a nation manufacture and send technologies into space, it is the laws of that nation which are applicable to the use of the associated IP, such as any patent rights. But what about the common situation where more than one nation that has ratified these agreements collaborates on launching an object into space? The Registration Convention requires that the collaborating nations decide themselves on which country's register that object will be registered8 and hence which nation has legal jurisdiction over the object.
Protecting inventions destined for space
As discussed above, once the nation with jurisdiction has been identified, enforcement of space technology depends on that particular nation's patent law.
Does Australia have any special intellectual property laws for space?
Whilst Australia has passed laws for regulating space activity pursuant to its international obligations, it does not currently have any specific IP laws for space technologies. There are also currently no judicial decisions in Australia that consider the limitations of Australian patent law with respect to an invention operating partially or entirely in space. Consequently, whether Australia's Patents Act, which does not explicitly refer to space,9 applies to space technologies remains untested. In contrast, the United States updated its patent law to specify that "Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States...".10
Choice of country for space technology patents
In space or on Earth, a good patent protection strategy requires careful consideration of which countries have commercial significance to the owner of an invention. Investors and owners of technology with the potential to be launched into space should consider patent protection in countries where they believe their technology could be used, licensed or where similar use and development by third parties may occur. This should include the country in which a space object embodying the invention will be registered.
Whilst questions for inventions that have an Earthly use may be as simple as "in which countries do I intend to manufacture and sell this product?", for space-based technologies additional considerations might include:
- where the invention will or could be launched into space;
- what terrestrial components the invention involves and which countries those terrestrial components are, or might in the future, be located; and
- if the invention will interface with an object already placed in space, which country's law applies to that object.
Protection of space inventions
When seeking protection for technologies which may be used partially or wholly in space, there are a number of considerations in the drafting of the patent that may impact enforceability.
The nature of the invention: drafting considerations
If the patent covers a physical device then it will be tied to a tangible object which would have to be made before it is launched into space. Physical devices may also have additional terrestrial applications, and so the patent shouldn't be limited to the technology only being used in space. Focus on patenting physical technologies is a technique often used by NASA. Their patent portfolio includes a range of physical objects from grip-assist gloves for astronauts, developed in conjunction with General Motors, to devices for conducting scientific experiments.1213
When dealing with communication, data processing systems, or computer programs, patenting a physical object is not always an option. However, a patent can focus on elements of a method which interact with space technologies from Earth. A great example of a company using this approach is Sigfox. In one of their patents for location technology, the patent is directed to a method of receiving and transmitting signals to a satellite, without covering the satellite itself.14
Another way to protect space technologies, particularly those being launched into space or which are required for space launches, is to protect the specific technical innovations that take place in the airspace of a county rather than in space. These inventions may include developments which enable an object to be launched in a certain way, or which are required to achieve a specific orbit. Blue Origin pursues patents in this area, such as their patent for protecting methods and systems of landing space vehicles.15
In some situations, for example, where making an invention public is undesirable, a patent may not be a suitable means of protecting the invention. In such cases, depending on applicable law, contractual confidentiality requirements or trade secret law may offer alternative means to protect space inventions.
A key source of a patent's value is the owner's right to enforce it against anyone that infringes the patent. There are difficulties with enforcement of space-based patents due to jurisdictional conundrums and the fact that most countries' patent law was not developed with space in mind.
In Australia, in order to successfully enforce a patent, another party must infringe the patent by making, using, or selling the patented invention without the owner's permission. Typically, during infringement proceedings, the Australian courts would analyse whether all aspects of an invention protected by a patent are present in the infringing activity. However, with inventions that operate wholly or partially in space, one potential snag with enforcing a patent is establishing whether all, or just some of the features are being exploited within Australia's jurisdiction. In the case where not all aspects of the patented technology are infringed within Australia's jurisdiction, this may pose a significant if not fatal hurdle for establishing infringement.
Another issue that could increase in severity as more countries develop launch capabilities is the opportunity for a would-be infringer to shop around for a country in which a patent has not been obtained. They could evade infringement in a country where a patent exists by manufacturing, launching or otherwise using the invention in another country and/or within space objects registered to that country. A patent owner trying to protect their patent may need to consider such circumvention strategies when deciding on countries in which to obtain patent protection.
Finally, gathering evidence to demonstrate that infringement has occurred may be fraught with problems due to the limitations on obtaining evidence of historical activities which have occurred in the space environment.
The final frontier...for patents?
Identifying which patent laws apply and when those patent laws provide adequate protection are key considerations when obtaining and enforcing patents for space technologies. The way a patent is crafted is also an important part of ensuring that an invention is adequately protected to minimise risk.
With the projected expansion of the space economy, and as space becomes more accessible, the protection of space innovation is more important than ever. Spruson & Ferguson continues to carefully follow developments in the protection of IP in space.
1 https://www.morganstanley.com/ideas/investing-in-space. Other estimates suggest that in 2019, the space economy was worth $423.8 billion (USD): https://www.spacefoundation.org/2020/07/30/global-space-economy-grows-in-2019-to-423-8-billion-the-space-report-2020-q2-analysis-shows/ .
2 While there are technical distinctions between the terms, "nation", "country" and "State", in this article "nation" and "country" have been used interchangeably to refer to sovereign States.
3 Patents Act 1990 (Cth) s13(1).
4 Article 2 of the Outer Space Treaty.
5 Article 6 of the Outer Space Treaty. Note also that article 6 states that for non-governmental agencies, "The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty."
6 Article 8 of the Outer Space Treaty.
7Article 12 of Moon Agreement. Notably only 18 countries have ratified the Moon Agreement. The USA, China and Russia have not.
8 Article 2 of the Registration Convention.
9Patents Act 1990 (Cth) s12.
10 35 U.S. Code 105. For a copy see: https://www.law.cornell.edu/uscode/text/35/105.
11 US Patent No. 9,149,933.
12 US Patent No. 9,998,639.
13 US Patent Application No. 20200388916.
14 US Patent No. 10,505,624.
15 US Patent No. 8,678,321 and US Patent No. 10,822,122.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.