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.

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.

In 1945, Arthur C. Clarke, author of Childhood’s End and 2001: A Space Odyssey, described a communications network utilizing GEO satellites. At the time this was pure science fiction because no one possessed the technology to build and launch such satellites.

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!

Happy creating!

8 thoughts on “Patenting Orbits? It’s all part of the Process

  1. Hi Stephen! Thanks for the comment! Orbits definitely skirt closer to the laws of nature exception than, say, boat lifts. I expect that, as commercial industry pushes into space, we’ll see a lot more patents related to tricks for reducing or borrowing the necessary energy to change orbits, among the million other technologies that we’ll uniquely adapt to space operations, like 3D printers!

  2. Mmm…

    I’d suggest that an orbit is simply a pathway and not a “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”

    My understanding of pathways is that they are not patentable.

    After all, the first interstate highways did not ever patent the paths the highways were placed upon. While a new pathway to a new destination might indeed become accessible (where it wasn’t before) by using a new man-made process which may indeed be patentable (as in the case of deep diving submarines able to explore more and more of the oceans) the paths themselves have always been there and are a part of nature.

    And thus not patentable.

  3. Hi Chuck! Exactly! So there are many patents addressing using orbital “pathways” for accomplishing stuff like telecommunications, but no patents on the GEO orbit itself!

  4. It might be a good time to point out that not every industry (or country) is quite so patent happy as (for example) the software industry or the record industry.

    Patent laws are just another form of laws that we can change, modify and erase at our leisure, depending on what we perceive of as being best for the larger industry.

    Check out this video on the fashion industry for an example

  5. Hi Chuck! I agree that some members of the software and record industries aggressively defend their respective patent rights and copyrights, but there are certainly portions of the fashion industry that are at least as litigious, if not more so, than software giants. Design patents on shoes, for example, have historically been litigated at a rate seven times higher than any other category of design.

    And I agree with you that our patent and copyright laws are a way to spur innovation, not necessarily the way. In the US, our patent and copyright system is built on the Constitution (Article 1, Section 8, Clause 8), but there are likely plenty of ways to carry out this power.

    Personally, I believe it is important to consider how much litigation is actually going on when debating the effectiveness of our current system. Even in light of cases like Apple v. Samsung, it turns out that only around 1-2% of patents are ever actually involved in litigation!

  6. Near as I can tell, the specifics of IP litigation in the shoe industry does not effect the overall points that Johanna Blakley was making in her presentation regarding the larger fashion industry in much the same way that the existence of the open source software industry doesn’t directly reflect on the litigious nature in other segments in the software industry.

    As we both know, the point Blakely was making is that non IP focused industries are generally larger, healthier and more creative than industry segments with stronger IP protection.

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