As private industry and government entities increasingly venture into space, securing IP rights for space-related innovations has become a critical consideration. The global space industry is projected to generate more than $1.8 trillion by 2035, which is driven largely by consumer demand for mobile phone positioning and navigation services, AI and machine learning, and greater satellite connectivity.[1] For companies seeking to protect their innovations in space, understanding the interplay of international agreements and national laws is fundamental in the development of effective IP portfolios.
The Legal Framework: Treaties, Accords, and Acts
The Artemis Accords
The Artemis Accords, signed in October 2020, establish a set of non-binding principles to guide international cooperation in civil exploration and use of the Moon, Mars, and other astronomical objects. The Accords acknowledge the need for addressing IP issues for space exploration, but delegate this task to other bilateral instruments between Signatories.[2] This deliberate separation highlights the complexity of applying terrestrial IP concepts to extraterrestrial environments.
The 2015 U.S. Commercial Space Launch Competitiveness Act (SPACE Act of 2015)
The SPACE Act of 2015 was established to encourage the growth of commercial spaceflight and innovation. The Act marked a significant step in recognizing private property rights in space by recognizing that U.S. citizens can “possess, own, transport, use, and sell” an asteroid or space resource obtained in accordance with applicable law.[3] However, the Act remains silent on patent rights for innovations used or created in space, leaving existing patent laws and treaties to govern in this area.
Patent Protection in Space: Jurisdictional Challenges
U.S. Patent Law and Outer Space
Under 35 U.S.C. § 105, U.S. patent law extends to inventions made, used, or sold in outer space on a space object or component thereof under the jurisdiction or control of the U.S. This provision provides important protection for U.S. companies deploying patented technologies in space. However, it contains a significant loophole: U.S. patent law specifically does not apply to any space object, or component thereof, that is on the registry of a foreign country under the Convention on Registration of Objects Launched into Outer Space.[4]
The Foreign Registration Loophole Explained
This loophole creates a potential path for circumventing patent infringement in the U.S. Consider a scenario where a U.S. company constructs a space object incorporating technology covered by a competitor’s U.S. patent. Under the foreign registration loophole, by registering the object in a country where the competitor’s invention is not patented, the company could avoid infringement liability for use of that technology in space. The foreign country would retain jurisdiction over the space object while it is in space, effectively placing it outside the reach of U.S. patent enforcement.
Enforceability of Method Claims on Celestial Bodies
Another particularly challenging aspect of space patent law concerns the enforceability of method claims when practiced on celestial bodies, like the Moon. Generally, enforcement is governed by the national law of the country concerned. Under U.S. law, patent infringement requires that the invention be made, used, offered for sale, or sold “within the United States”.[5] Patent infringement cannot be based on acts occurring entirely in foreign jurisdictions, as established in Rotec Industries, Inc. v. Mitsubishi Corp., 215 F.3d 1246, 1251–52, (Fed. Cir. 2000).
The Outer Space Treaty explicitly states that no nation can claim sovereignty over the Moon or other celestial bodies. Consequently, activities conducted on the lunar surface likely fall outside the territorial jurisdiction of any nation, including the United States. This creates a significant enforcement challenge for method claims practiced exclusively on the Moon or other celestial bodies.
Optimizing Patent Protection for Space Technologies
Considering the unique challenges for securing and enforcing rights in space related technologies, companies developing technologies for space applications should consider the following strategies.
Diverse Claim Structure. Rather than relying solely on method claims, companies should emphasize product claims or combinations of product and method claims. This approach will strengthen the enforceability of the claimed subject matter in space, and is evident in patents held by major space industry players like SpaceX (U.S. Pat. Nos. 10,770,790, 11,695,222, and 12,177,060), Blue Origin (U.S. Pat. Nos. 8,729,442 and 10,266,282), and NASA (U.S. Pat. Nos. 9,187,189 and 9,906,291).
Strategic Foreign Filing. Given the jurisdictional complexities, companies developing technologies for space applications should implement a comprehensive foreign filing strategy. Ideally, this would involve filing patent applications in all 76 countries that are parties to the Registration Convention. However, recognizing the prohibitive cost of such an approach, companies should prioritize filings as follows:
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- Spacefaring Nations: Countries with established space launch capabilities should be the highest priority, as they are most likely to serve as launching states for space objects.
- Technologically Advanced Countries & Strategic Launch Locations: Nations with developing space programs or locations particularly suitable for launches should form a second tier of filings.
- Developing Countries & Non-Strategic Locations: Countries without current space capabilities but are parties to the Registration Convention should be considered based on their potential future development and strategic importance.
Trade Secret Protection: Companies often rely on trade secret protection to protect particular space-related technologies, especially for innovations that can be effectively protected without disclosure. Trade secret protection may offer advantages over patents, particularly given the jurisdictional limitations and complexities of patent enforcement in space. Trade secrets can also last indefinitely, but they are not without risk. If a trade secret becomes generally known or accessible to others—for example, by reverse engineering—it loses protection.
The Future of Space IP
As private industry continues to accelerate commercial space activities, the relationships between technological development, IP protection, and business strategy becomes increasingly important. For now, companies must carefully navigate the existing patchwork of national laws and international treaties to protect space-related technologies. Companies can use this to their advantage by implementing comprehensive IP protection that accounts for these unique challenges, which can elevate a company’s valuation and enhance their competitive edge.
[1] Space: The $1.8 trillion opportunity for global economic growth, McKinsey & Company (April 8, 2024), https://www.mckinsey.com/industries/aerospace-and-defense/our-insights/space-the-1-point-8-trillion-dollar-opportunity-for-global-economic-growth.
[2] Artemis Accords: Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets, and Asteroids for Peaceful Purposes (2020), https://www.nasa.gov/sites/default/files/atoms/files/artemis_accords.pdf.
[3] SPACE Act of 2015, 51 U.S.C. § 51303.
[4] 35 U.S.C. § 105.
[5] 35 U.S.C. § 271(a).
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