Andrew Rush

Hi! I am a patent agent interested in sharing my knowledge of intellectual property issues and space exploration with the world.

Homepage: http://ipinspace.com

Video: Where Does Space Begin? Up There!

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! Read the rest of this entry »

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CCiCap Space Act Agreements: Keep your IP Rights, If You Want To

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.

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CubeSats With A View Require NOAA Licensing

Examples of remote sensing images collected by satellites. Image credit:NOAA.

Every satellite–from school bus-sized communications behemoths, to super-secret spy satellites, to tiny CubeSats–has to make it through a gauntlet of documentation and approvals before they ever fly. This is understandable since even something as small as a 1 kilogram CubeSat can pack a mighty wallop after it is accelerated to an orbital velocity of 17,000+ mph!

Satellites and other spacecraft have to be registered under the Registration Convention, launch range safety approvals have to be wrangled, and FAA licensure must be addressed.

Depending on the type of satellite being launched, the National Oceanic and Atmospheric Administration gets in on the game, too! Earth gazing and other remote sensing satellites, including CubeSats observing the earth, must pass a NOAA licensing process. The good news for CubeSat developers is that NOAA often goes out of its way to accommodate the needs of private satellite developers and operators.

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The Lay of the US Patent Land: From application to expiration (Part 2 of 2)

Photo credit: Pavel Novak.

Last week, we discussed the pros and cons of doing your own patent search and what goes into the different parts of a patent application. This week, let’s get into the journey a patent application makes once it is filed.

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One Spark Event may Ignite your Space Startup

I am based in Jacksonville, Florida, which is an awesome place that no one really knows about. We have nice weather, beaches, the river, tons of sports teams, a spaceport, and the jet stream (knock on wood) keeps hurricanes at bay! And just down the coast is the Cape and the rest of the Space Coast! Jacksonville also has a fast growing creative community which is committed to getting the word out about our fair city. Just to name a few things, Jacksonville has a great coworking space called CoWork Jax, a makerspace called JaxHax, and an upcoming TEDx event, TEDxRiversideAvondale.

In April, Jacksonville will be hosting the first ever One Spark event and I think every New Space company and New Space enthusiast should come! Why? Because One Spark is set to become a huge event where creative people and companies can exhibit their innovations and receive funding from a $250,000 crowdfund! If you can’t come, check out their Kickstarter! Read the rest of this entry »

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The Lay of the US Patent Land: From application to expiration (Part 1 of 2)

Photo credit: Pavel Novak.

For many inventors, engineers, and emerging technology companies, condensing a flash of genius into a new invention or engineering a solution to a problem is the easiest, most familiar step in the patenting process. The climb up the US Patent Mountain, as it were, can be a long, treacherous one. Or it can be a quick sprint, if you’re willing to pay the Patent Office extra fees. With that in mind, let me be your patent Sherpa, explaining the process and walking you through the general steps.

The patent process extends from before an application is filed until the patent expires. We can think of the patenting process as a mountain climb where the patent issues once we reach the summit. But just like an Everest climb, where most deaths occur on the way down the mountain, more than 50% of issued patents expire before the end of their 20 year term. What does the rest of the journey look like? Read on!

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Patenting Orbits? It’s all part of the Process

Orbits may be part of a valid patent where the patent discloses and claims some new, useful, and non-obvious process or device, like a method for global telecommunications!

Patentable subject matter includes “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” That’s the patent law way of saying essentially anything new under the sun made by the hand of man is potentially patentable! There are, of course limits to what can be patented. Laws of nature (E=mc2), physical phenomena (ice is less dense than liquid water), and abstract ideas (let’s go to Venus on a spaceship!) are not patentable. Applications of these patent ineligible areas may receive a patent. For example, patented technologies used in GPS satellites would not operate without utilizing Special and General Relativity.

Orbits may be, at a minimum, part of a process for accomplishing a task. Patentable subject matter includes processes! So new orbits/orbital maneuvers can be patent-eligible if used for some useful purpose. It is important to keep in mind however that the orbits themselves aren’t patented, technological solutions for providing telecommunications which utilize equipment in those orbits are patent eligible.

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FAA Smooths the Path to Commercial Spaceflight

The first FAA licensed rocket launch was a Starfire rocket, similar to the one pictured above. NASA photo courtesy of Joel Powell.

Developing new aerospace vehicles is an expensive proposition in terms of both time and money. Boeing has spent an estimated $32 billion developing the 787.  Rockets are no different: NASA’s Space Launch System has an estimated development cost north of $30 billion. Even lean SpaceX spent around $300 million to develop its Falcon 9 rocket. Despite the fact that NASA estimated it would have spent more than a billion dollars to develop Falcon 9 in a traditional manner, $300 million is still nothing to sneeze at!

The time and money spent developing a new launch vehicle is not spent exclusively on engineering, machining, and testing new parts, however. Some of that money and a significant amount of time are spent going through the FAA launch license process. Traditionally, the FAA currently has restricted the types of launch vehicles which are eligible for licensing, making it difficult for some small launch vehicle operators to fly NASA-sponsored and other payloads. Recently, the FAA proposed loosening these restrictions in a manner that will allow many emerging aerospace companies to voluntarily apply for licensing. Specifically, the FAA will begin allowing operators of Class III amateur rockets to apply for launch licenses.

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Patent Thickets Are Not Novel

No man, no industry, no new technology is an island. Our understanding of the universe and our ability to manipulate our surroundings via technology is possible only because we, as Isaac Newton put it, are “standing on the shoulders of giants.” The pace of innovation in many fields, the software field in particular, has led to development after incremental development being built upon technologies that have barely made it to market, creating overlapping intellectual property rights which are allegedly choking innovation. These “dense web[s] of overlapping intellectual property rights”, or patent thickets, require that companies must license technologies from multiple sources in order to bring a new product to market.

For the better part of a decade, people throughout the software industry have been predicting that these patent thickets will destroy some, if not all, of their industry in a blaze of litigation.

Many people fear that the commercial space industry will be condemned to the same “innovation-choking” state of affairs as our sector matures. If history is any guide, however, neither the software industry nor the future booming commercial space industry will be necessarily bogged down in perpetual patent wars.

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Patent Rights Under Space Act Agreements

SNC is developing the Dream Chaser under Space Act Agreements with NASA. Image credit: NASA/SNC.

Aladdin’s genie had “Phenomenal cosmic powers! Itty-bitty living space!” Space Act Agreements (SAAs) are very similar. They give NASA considerable flexibility to partner with private entities. NASA can start from essentially a blank slate in order to create an agreement aimed toward a specific goal like using the International Space Station as a national laboratory or developing robotic vehicles capable of delivering supplies to low earth orbit. On the other hand, SAAs may not be used in many circumstances. For example, funded SAAs are typically used only where a NASA objective cannot be achieved through the use of traditional contracts. When SAAs are used, The Chiles Act may force NASA to take ownership of any intellectual property developed under the SAA. However, there are ways to avoid the title taking action. Even when NASA does take title to the IP, many SAAs provide a clear path to returning ownership of patents and other IP that is developed under the SAA to the private developer.

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