Orbital Operations are patentable subject matter, while the orbits themselves likely aren’t.
When it comes to orbits, what is patent-eligible? A requirement of 35 U.S.C. 101 is that “Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
As an orbit in and of itself is a natural phenomenon, it can not receive a patent. However, “useful systems which incorporate particular orbits, such as technological solutions for providing telecommunications which utilize equipment in those orbits, are patent-eligible.”
So what does this mean for up and coming players like Planet Labs, Planetary Resources, and SpaceX compared to long time spaceflight companies like Boeing? Find out by reading Becky Ferreira’s article on Motherboard where I shared my thoughts on the future of orbit-related patents.
You’re free to use this picture from Apollo 4 (Photo credit: NASA).
To date, the U.S. government has been a major player in space exploration, technology, and photos. Under 17 USC §105, all photos taken and shared by the U.S. government are not subject to copyright law and free to be used by the public!
But as more private entities are exploring space, and launching payloads and with a rise in social media and photo sharing, what Copyright Laws come into play?
But you’re not necessarily free to use this one! (Photo Credit: SpaceX)
Rendering of a SpaceX Falcon 9 first stage after landing on the autonomous spaceport drone ship. Image credit: Jon Rosszlsa.
For space companies, technologies which seem in one’s grasp more often than not take a long time to prove out and cost millions upon millions of dollars before there is an actual working prototype demonstrating that, in fact, the technology works as envisioned. Better (or worse!) funded competitors may pop up at any moment, using similar technologies to steal the low hanging fruit of the existing space-related market. What is a space entrepreneur to do in order to protect their developing technologies and efforts from relegation to also ran status? As previously mentioned here, at least a portion of one emerging space company’s answer to this conundrum was filing at least one somewhat curious patent application.
For many, space is the final, and most exciting, frontier. From a legal standpoint, where that frontier actually begins is frustratingly hazy. As commercial entities and private citizens begin frequently visiting and operating in space, this legal haze threatens to spill over into the mainstream and constrain growth of the new space-based industries. Fortunately, there are at least three approaches to clarifying the legal definition of the edge of space!
Stephen Murphey and I have put together the above video discussing where space begins. The video details the three approaches taken in attempting to create an international (or national) definition of where space begins. The three approaches are: physical, functional, and definition by fiat. The physical approach is the most widely used in the popular press, but unfortunately, FOX and CNN are not government lawmakers! Continue reading
Traditional cost-plus and FAR contracting serves NASA well with traditional contractors when budgets were more flexible. In many areas where the contractor will do the majority of the development and innovation, traditional contracting approaches fail because NASA is a title taking agency. As a title taking agency, anything intellectual property developed under a traditional NASA contract belongs to NASA. Traditionally, this has discouraged innovative companies from working with NASA.
Under NASA’s COTS, CCDev and CCiCap programs, unmanned space freighters and astronaut-carrying space taxis are currently under development by several innovative companies. Substantial development has been done by these companies which are valuable from the perspective of working with NASA, but potentially more valuable in the commercial sector. The use of Space Act Agreements and providing a clear path to returning ownership of intellectual property to the companies doing the development has played a pivotal role in making these programs successful from NASA’s standpoint and from a commercial standpoint. Let’s take a look at the structure of these agreements and how they are being implemented.