When Space is the Place

Unique Considerations for Patenting Inventions Practiced in Outer Space

BY KATE MEAD

Since the 1980s, outer space has developed into a significant destination for commercial technologies. The commercial space industry now has an estimated value of hundreds of billions of dollars.¹1 NASA, “What is the Commercial Low Earth Orbit Economy?” (June 21, 2022), available at www.nasa.gov/humans-in-space/commercial-space/what-is-the-commercial-low-earth-orbit-economy/. In particular, low Earth orbit (LEO) satellites are increasingly important for providing commercial computing and telecommunications services. Companies are shifting computing loads onto networks of LEO satellites that execute software while orbiting the Earth and that transmit communication signals to devices located on the Earth’s surface. With the expansion of commercial activities in outer space, there is a corresponding desire (and need) to invent more space-related technologies. The U.S.’s traditional mechanism for encouraging commercially relevant innovation is the U.S. patent system. But does that framework translate to extraterrestrial inventions?

According to 35 U.S.C. § 271(a), “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the [U.S.] or imports into the [U.S.] any patented invention during the term of the patent therefor, infringes the patent.” In general, a U.S. patent can only be enforced against activities within the territorial jurisdiction of the U.S. For example, a patented, computer-implemented method can be enforced against the execution of every step of the method by a computer located within the U.S. If any step required by a patent claim is performed outside of the U.S., such as by a computer located in Canada, the patented method claim generally cannot be enforced. 

The U.S. does not claim territorial jurisdiction over outer space. Similar to limits of coastal jurisdiction in maritime law, U.S. airspace is bounded by a limited elevation above the surface of the U.S. Outer space is generally defined above the Kármán line, which is a “boundary” set at 100 kilometers above mean sea level. LEO satellites, for instance, can reside up to 2,000 kilometers above the Earth’s surface—well outside of U.S. airspace. Moreover, many satellites are designed to orbit around the Earth. An LEO satellite that is launched in the U.S., for instance, may travel over oceans and land masses far from the borders of the U.S. 

In an attempt to claim jurisdiction over some infringing activities occurring in outer space, the U.S. enacted 35 U.S.C. § 105 in 1990, which states: “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 for the purposes of [U.S. patent law] ….” In theory, a U.S. patent can be enforced against an LEO satellite or another device in outer space that is a “space object or component thereof under the jurisdiction or control of the U.S.” Id. 

The U.S.’s jurisdictional control over space objects is defined in a series of international agreements. As a signatory of the Convention on Registration of Objects Launched into Outer Space, art. I & II, 12 November 1974, 1023 U.N.T.S. 15 (the “Registration Convention”), the U.S. “shall register” any object that is “launched into earth orbit or beyond” from the U.S., as well as “component parts of [the] object” and “its launch vehicle and parts thereof.” Further, as a signatory of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, art. VIII, 19 December 1966, 610 U.N.T.S. 205 (the “Outer Space Treaty”), the U.S. “shall retain jurisdiction and control” over any space object that it registers. Thus, in theory, U.S. patent laws can be enforced against activities by any satellite or space-traveling vehicle that is launched from and registered by the U.S. 

Fortunately for U.S. patent holders, the combination of these laws enables enforcement over many space technologies. Of the 2,664 objects launched from Earth into space in 2023, 2,166 of them were launched from the U.S. United Nations Office for Outer Space Affairs.²2 Online Index of Objects Launched into Outer Space (2024), available at www.unoosa.org/oosa/osoindex/search-ng.jspx. Theoretically, a U.S. patent could be enforced on an LEO satellite controlled by a German company that only provides services to customers located in the EU, provided that the satellite was launched from and registered (under the Registration Convention) by the U.S. 

U.S. patent law, however, has some important jurisdictional limitations in outer space. For instance, a potential infringer could avoid liability under a U.S. patent by launching an LEO satellite from outside of the U.S. Even if the LEO satellite provides communications and services to entities within the U.S., and even if the LEO satellite is controlled by a U.S. company providing services to U.S. customers, these activities are outside of the apparent jurisdiction of U.S. patent laws based on the influence of the above-noted international treaties. For example, an LEO satellite exclusively providing telecommunication services to devices within the U.S. could theoretically avoid infringing U.S. patents if it was launched into space from the U.K.

Additionally, there are practical limitations to enforcing U.S. patents on activities in outer space. Because it is difficult to physically inspect devices after they have been launched into space, it could be particularly challenging to prove that an LEO satellite or some other space object is infringing an issued patent claim—whether to a method or a device. 

Entities seeking to innovate and patent space-related technologies should consider a few guiding principles as they develop a patent-filing strategy. First, because the U.S. can assert jurisdiction over the vast majority of space objects launched from the Earth (because the vast majority of space objects are launched from the U.S.), entities should prioritize filing patent applications in the U.S. over other national jurisdictions. In theory, U.S. patents with claims that target the space objects themselves are enforceable. 

Second, if possible, entities should consider prosecuting a mixture of claims that target methods and structures of both space objects and terrestrial devices that interact with the space objects. For instance, in some cases, inventive features can be claimed from the perspective of a satellite or a ground station that interacts with the satellite. Claims directed to the satellite can be enforced under § 105. Claims directed to the ground station may be enforced using more conventional legal principles (including § 271), because such claims are directed to devices within the traditional territorial jurisdiction of the U.S. 

Third, due to practical challenges with proving infringement in space, entities should carefully consider whether it is appropriate to file patent applications on difficult-to-detect technologies or whether trade secret protection is more useful. There may be limited value in a patent if the patent owner cannot prove whether an LEO satellite or a method implemented by the satellite falls within its claims.

Fourth, for particularly important technologies, or for patent claims targeting activities by companies that launch outside of the U.S., entities should consider contacting local counsel about the value of pursuing patent rights in other jurisdictions associated with active launch sites and which are signatories to the Registration Convention and the Outer Space Treaty, such as the U.K., Germany, and France. Other countries with active launch sites include Japan, Russia, and China. Given the multiple European jurisdictions with launch sites, entities will want to consider whether submitting applications at the European Patent Office, or pursuing unified European patents, is worthwhile. 

Those aiming to enforce patent claims against technologies in outer space should also be mindful of the legal uncertainty associated with the applicability of U.S. patent laws to technologies in outer space. While the legal principles described above appear to apply to many space-related technologies, the validity of these laws is largely untested. Moreover, these laws were introduced and promulgated long before the development of modern computing technologies that have significantly increased the relevance of space-related technologies. Until a U.S. patent claiming extraterrestrial components or steps is enforced or challenged, and the U.S. courts and legislative branch provide further guidance, U.S. patent enforcement in space is inherently uncertain. 

NOTES

1. NASA, “What is the Commercial Low Earth Orbit Economy?” (June 21, 2022), available at www.nasa.gov/humans-in-space/commercial-space/what-is-the-commercial-low-earth-orbit-economy/.

2. Online Index of Objects Launched into Outer Space (2024), available at www.unoosa.org/oosa/osoindex/search-ng.jspx.