Clean energy beamed down to Earth. Exotic semiconductors and novel pharmaceuticals manufactured in microgravity. A base on the moon. Asteroid mining. Satellite recycling. Data server farms in orbit. Space tourists.
A new horizon study Space: 2075, issued by the Royal Society, sets out a vision of potential developments in space over the next 50 years. These could be as consequential, the report says, as the Industrial Revolution of the 18th century or the digital revolution of the 20th. But as space
becomes increasingly commercialised, is the present patent system up to the task?
The state of the UK space industry
The UK space industry is worth over £16 billion annually and employs more than 45,000 people. Almost every year since 2000 has seen the incorporation of at least 50 new space-related companies in the UK.
That said, the UK could do better. The UK spends less on space than some similarly-sized nations – less as a % of GDP than France, Italy, Belgium, Germany, as well as even Switzerland and Norway. Attempts to spur the industry have had mixed results. The UK has established over a dozen space innovation clusters, but none of the seven UK spaceports first legislated for in 2018 have as yet resulted in a successful launch.
Meanwhile, for reasons both geopolitical and economic, international competition in the space sector is increasing. National pride, industrial and defence policies have led to approximately a dozen countries now having launch capability. At the same time, the cost of getting material into orbit has fallen. In the last decade, the cost of launching a 1kg payload into low-Earth orbit has fallen from around £15k to £1k. This has consequently lowered a major barrier for new entrants.
It is clear that the UK space industry needs a boost. And indeed, the Royal Society report identifies the need to stimulate the scale-up of UK space SMEs. One recommendation for achieving this is through increasing the confidence of the finance sector. For example, using technical means to reduce the risk of satellite collisions could reduce insurance costs.
What is missing from the report is a discussion of another form of incentive: patents. Investors looking to back a company in an innovation-driven industry such as space will be wanting to know whether they have sufficiently protected their intellectual property to ensure successful commercialisation.
Patent law and the impact of ‘space law’
Here on Earth, most countries of the industrialised world operate a well-established patent system, the foundations of which can be traced back to the Paris Convention for the protection of industrial property of 1883. Although patents are inherently territorial, which is to say they operate at a national level, various international agreements have sought to allow for some degree of interoperability.
However, patent law becomes less clear above the Kármán line, the 100km altitude widely accepted as the beginning of space. Part of the problem is a certain tension between terrestrial patent law and what might be termed ‘space law’, originating in a handful of international agreements drawn up in the 1960s and 70s. The idealistic tone of these early agreements, seeking to codify the peaceful exploration of space, can be seen in how they constrain property rights. The agreements prohibit national appropriation in an attempt to ensure space remains the “common heritage of mankind.”
This is not to say that ownership of IP in space is entirely impossible. Much of the concern of these treaties was the ownership of physical rather than intellectual property. In other words, whether a nation, corporation or individual could lay claim to a celestial body (generally, no). It has subsequently been argued that the treaty language is ambiguous. For example, it is unclear whether it would apply to processed material extracted from such bodies by mining activities.
Who owns innovation beyond Earth?
There is potential for applying ostensibly Earth-bound laws, including those directed to intellectual property, in space. The potential arises from the way the Outer Space treaty (1967) and the registration Convention (1965) allow for jurisdiction over an object launched into space or on a celestial body to reside with the state which launches the body or the state from which the body is launched. Some later agreements, typically multilateral ones in respect of specific endeavours, acknowledge jurisdiction over IP more directly. For example, the ISS agreement (1998) includes specific provisions regarding protection of IP on the international space station, assigning jurisdiction and territory of each station module according to its state of origin. Others, such as the Artemis Accords (2020), merely acknowledge the need for relevant IP provisions without providing any further legal structure.
At present, in much the same way as an “international patent” does not exist, neither are there any provisions for – or immediate prospects of – a “space patent.” And while some countries, notably the US, have explicitly sought to extend the coverage of their national patent law to inventions made in space, many others including the UK have no such provision. This could arguably lead to the situation of a space object being considered to be in the jurisdiction of the UK by virtue of being launched from the UK, yet outside the territorial scope of UK patent law.
How can space innovations be best protected?
The applicability of patent law in orbit (or beyond) remains untested and proving infringement in space is unlikely to be straightforward. In the absence of specific contractual agreement, the best option at present appears to be, rather ironically, to aim primarily for terrestrial protection i.e. to seek a patent monopoly that would be infringed on Earth.
To that end, a careful analysis of what activities are being conducted on Earth needs to be undertaken. And for a product being made in orbit, where it is to be returned to on Earth.
The patent filing strategy also requires careful consideration, not least because territorial decisions made relatively early in the patenting process become locked-in for the duration. This requires due diligence to identify competitors: where relevant space objects are registered (the ‘flag of convenience’ issue) and launch locations both present and future.
So, can the present patent system cope with potential developments in space over the next 50 years? For the next short while, with careful handling, perhaps – but over the long term it seems some updates will be inevitable. The Industrial Revolution led to a substantial overhaul of patent laws; the digital revolution was accompanied by a flood of patent filings pushing the boundaries of patent laws. Would we expect the space revolution to be any different?
