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.
Because the United States specifically applies its patent laws to space objects (e.g., spacecraft or satellites) under the jurisdiction of the US, US patents on orbiting telecommunications systems are relevant to the commercial space industry! This has been long recognized in the satellite industry. Companies like TRW, Motorola, Thales Alenia Space, Globalstar and others have being filing for and receiving patents for more than three decades. There are even expired patents now on methods of storing spare satellites in orbit in order to replace others as they grow old or break!
Some satellite orbit related patents, like US Patent No. 5,410,728, issued in 1995, describe a system of satellites working together in specific orbits in order to perform some task, like providing worldwide telecommunications to consumers. Here, an orbit such as a highly inclined orbit is necessary for the equipment disclosed, but the patent doesn’t cover anything and everything in those orbits. Rather, only a satellite constellation including all the elements listed in a claim is covered by the patent.
But in order to get a patent you, or people in the industry, have to actually be able to reach the orbit!
In much the same way that I cannot patent a Star Trek-style phaser, I cannot patent a fundamentally new orbit if the technology doesn’t exist to achieve such an orbit. Simply because I can imagine a new technology does not necessarily entitle me to a patent on that technology.
Arthur C Clarke’s geostationary orbit description is a great example. In 1945, Clarke described a global communications system comprising three satellites in geostationary orbit. He did not patent it, therefore his designs became a part of the public domain. In fact, Clarke could not patent global communications using GEO satellites because the technology to put satellites into such orbits did not exist yet!
In order to receive a patent, you much describe your invention with sufficient detail for people having skill in the relevant fields to understand and build your invention at the time you file for patent protection. In the case of Clarke’s description of a global communications system, he didn’t describe how to build a rocket to get to GEO nor, at that time, did people skilled in the relevant fields possess the knowledge to place satellites into GEO.
Once the rocket and other relevant space faring technologies had been developed, someone else likely could not have come along and received a patent for Clarke’s global communications system either because Clarke’s disclosures combined with the new technology would render a GEO communications as described by Clark obvious!