Through Patents to the Stars: How to Protect an Invention Related to the Near-Space Industry

Who among us has not been sad, realizing that childhood dreams are no longer relevant. Conquering near space is unprofitable, conquering deep space is impossible.

But startups that commercialize near-Earth orbit are alive and well. They believe that humanity will try to somehow get beyond Earth, and that its best representatives will be willing to pay for the experience of being beyond these limits.

For example, Orbital Assembly Corporation from Sacramento, USA, recently announced its intention to open the first space station for space tourists. hotel in orbit in 2027. Voyager Station will be a luxury resort for 280 guests and 112 crew members delivering guests. There will be a restaurant, bar, cinema, concert hall and gym.

Perhaps you, dear reader of this article, will want to get involved in space-related technologies and/or business. In this case, do not forget to protect your intellectual property. Inventions are usually protected by patents – but they were invented for Earth. When going beyond its boundaries, unexpected legal nuances arise that must be taken into account.

Space smells like money

Space tourism is certainly not the only direction for space exploration. McKinsey estimates the size of the global space economy evaluate $630 billion in 2023 and predict $1.8 trillion in 2035. Analysts there divide all space technologies into “backbone applications” and “reach applications.” The former includes, for example, everything that satellites, launch systems, and GPS-type navigation systems are built on. The latter are applications that allow “earthly” companies to generate income. For example, the algorithms in the Uber app that combine signals from the satellite and data from the phone itself to plot routes and connect drivers with passengers.

The development of near-space technologies and business poses many questions. Including legal ones. Including in the area of ​​intellectual property rights protection. First of all, patenting inventions.

A patent is a territorial phenomenon by its nature. Obtained in one region, it does not protect the inventor in another region.

In space, territorial boundaries are, to put it mildly, blurred. The general principles of interaction between states beyond the planet are set by a 1972 document called the Outer Space Treaty (OST). We call it the Outer Space Treaty, and in full it is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. It is the cornerstone of space law. In 1972, it was signed by the USSR, the USA, and Great Britain, and over time, 110 more countries joined (as of 2020).

That agreement, and a convention from the same year, tied the jurisdiction of space objects to the state that launched them. But it quickly became clear that things were not so simple.

1. Both agreements did not address intellectual property issues.

2. Space projects are often implemented by several countries.
   As a result, it is unclear who owns and how the rights to this or that information are protected.

Poor legislation

In 1974, the Registration Convention was adopted. It already stated that objects launched into space are attributed to the jurisdiction of the state directly providing the launch. As a result, if country A launched a satellite from the territory and spaceport of country B… they had to somehow decide among themselves whose satellite it was. But in this case, it seems to belong to both.

So if a satellite or other object launched from country B violated some patents registered in that country, that violation could be recorded. But if it used technology patented somewhere but not in country B, there was a legal blind spot, and there was no basis for protecting the rights of the patent owner.

In 1990, the United States attempted to extend its intellectual property protection boundaries into space and passed the US Patents in Space Act (USC §105).

According to the Act, “an invention made, used, or sold in a space object under the jurisdiction or control of the United States (or a component thereof) shall be deemed to have been made, used, or sold in the United States.” Unfortunately (for American inventors), this document applies to countries that have entered into a special agreement with the United States about this.

Patent lawyers simply recommend that inventors of space-related technologies patent them separately in all 72 countries that have signed the aforementioned Registration Convention. Of course, this is time-consuming and expensive.

Subtle nuances

Specialists They saywhich will make it easier for authors of inventions to protect their rights if they involve the production of innovative components of the invention or the entire invention on Earth. If production is tied to a specific country, the invention is tied to the relevant jurisdiction.

But a patent can describe an invention in such a way that only the use of the invention is protected, but not the process of its production. In this case, there may be no connection to the jurisdiction of production. For example, if you come up with a technology for isolating a certain element from lunar soil, which can only be used on the Moon.

The most relevant example of a vulnerable invention today is something that can be 3D printed outside of Earth (in orbit, on the Moon, on Mars, etc.). The company ICON, for example, is going to print residential modules and entire houses directly on the Moon, suitable for habitation not only by astronauts, but also by “civilian” colonizers.

And ICON patents the printer itself first and foremost. They developed a device that solved three problems of printing modules in space at once. The printer can withstand lunar temperature fluctuations from plus one hundred to minus one hundred degrees Celsius, is lightweight so that there is no need to move excess weight, and most importantly, it can print components larger than itself. Usually, the scale of the printer components is commensurate with the scale of the structure being created.

So what should a person do who has developed a technology applicable to space exploration, invented a device or other invention and rightly expects to reap the fruits of his labors?

Just patent it

IP Watchdog Columnists recommend three simple steps: patent the invention in the US, in China, and also obtain the so-called Unified Patent of the European Union, also known as the European Unitary Patent. As a result, the invention will be protected within the jurisdiction of the US (and this is not only the territory of the country, but also objects in space belonging to it); the patent will be valid in 17 countries that have ratified the Agreement on the Unified Patent Court of Europe (however, as experts write, one can count on the protection of this patent in all 39 European countries covered by the powers of the European Patent Office, EPO). And, of course, the Chinese patent will be valid in China.

Almost all experts who have spoken on this topic advise the inventor to be as proactive as possible and protect his rights without waiting for the risk of their violation to arise. It is unlikely that apple trees will bloom on Mars during our lifetime, but the commercialization of space is developing and will accelerate (as well as its scientific exploration, we will not say anything about the pace and intensity here). So if you are working on relevant technologies, start consulting with lawyers in advance.