Child of Barge Landing: Blue Origin’s Reissue Patent Application Is Public

The plot, as they say, thickens in the continuing battle between SpaceX and Blue Origin over rocket sea landing technologies. On the heels of decisions by the Patent Trial and Appeal Board regarding SpaceX’s challenges of Blue Origin’s original “barge landing” patent, U.S. Patent No. 8,678,321 (“’321 Patent”), the USPTO has made public a child patent application of the ‘321 Patent via its Public PAIR service.

patent seal

As predicted previously, this application is in fact a reissue patent application! That is, Blue Origin has asked that the USPTO to correct errors in the ‘321 Patent and issue a new patent. If successful, Blue Origin will surrender the ‘321 Patent in exchange for a new patent, providing SpaceX with intervening rights with respect to infringement of the ‘321 Patent, as discussed here.

How is Blue Origin approaching this? In its original application, Blue Origin incorporated by reference several other patent applications it filed, including applications resulting in U.S. Patents 8,408,497 and 8,878,111. In its reissue application, Blue Origin has pulled 14 figures and significant amounts of text from those applications in order to address issues with the original applications.

The reissue application contains a whopping 84 claims, including the 16 claims which issued in the ‘321 Patent.

This reissue application filing may indicate that Blue Origin will eventually “give up” fighting SpaceX’s inter partes review challenge of the ‘321 Patent. If the reissue application is allowed while the inter partes review is ongoing, in the inter partes review Blue Origin may simply concede the unpatentability of the ‘321 Patent, surrender the ‘321 Patent to the USPTO and, if possible, pursue SpaceX with its new reissue patent.

If SpaceX feels that the reissue application still improperly reads on SpaceX activities, there are avenues it may use to challenge the Blue Origin reissue patent application while it remains an application, as well as post grant challenge avenues such as inter partes review.

Patenting Orbital Tech and Techniques

Orbital Operations are patentable subject matter, while the orbits themselves likely aren't.

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.

Space Launch Companies Change the Copyright Landscape

You're free to use this picture from Apollo 4 (Photo credit: NASSA).

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?

I had the opportunity to speak with Jason Koebler of Motherboard and weigh in on the topic. Check out the article here.
But you're not necessarily free to use this one! (Photo Credit: SpaceX)

But you’re not necessarily free to use this one! (Photo Credit: SpaceX)

Intervening Rights: How the Blue Origin SpaceX Patent Dispute May Evolve

Rendering of a SpaceX Falcon 9 first stage after landing on the autonomous spaceport drone ship. Image credit: Jon Rosszlsa.

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.

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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! Continue reading