The commercial space sector is expanding rapidly. In the UK, SMEs are at the forefront with innovation in satellite constellations, propulsion, in-orbit servicing assembly and manufacture (ISAM), and downstream data platforms, for example. Their focus is usually on growth, securing investment and achieving revenue generation. IP and patents in particular can be useful tools in supporting those aims. How a company structures its patent portfolio is important, but also, especially in space tech, is how the individual patents are framed. The “Space” element of the Space sector naturally makes the engineering more challenging. It also raises some issues for patents for inventions not implemented in purely terrestrial environment (i.e., almost all other inventions and patents).
The issues of enforcing patents for space technologies
As a Space sector business you may consider that your technology is hardware. Most people know that patents protect inventions. Patents can be used to prevent others from taking certain acts in respect of the patented invention – patent infringement. Patents are also jurisdictional rights. A UK patent, for example, is enforceable against infringers with infringing activities taking place in the UK. That same UK patent is not enforceable against those same acts taking place in a different jurisdiction.
Patent infringement occurring in space, particularly whether that is possible, given the jurisdictional nature of patents, is an untested question. There are steps, however, that one can take when it comes to patent drafting that can, as far as possible, avoid the need to answer these tricky jurisdiction questions. In essence, this means prioritising claims for the invention for which infringement would occur on Earth. By focusing on terrestrial actions, the problem of in-space jurisdiction is avoided as far as possible, or at least terrestrial aspects are also protected.
Thinking broadly about infringement scenarios and the space tech commercial landscape enables wider and more valuable protection. The form of the claims in your patent determines what is protected, but also has a bearing on enforceability, validity and commercial value (or lack of!). When it comes to individual patents and applications, a key element is making full use of the breadth of claim type.
Claim categories
Careful consideration of patent claim categories is one way to achieve terrestrial coverage. The main categories of patent claim provide different and complementary forms of protection:
- Apparatus claims cover physical devices, such as a propulsion thruster or imaging sensor. They are often the backbone of a portfolio for engineering companies.
- System claims cover how multiple components interact, e.g. satellites and ground stations. Location is crucial: ground-based claims may be narrower but are often more enforceable.
- Method of manufacture claims protect new ways of making technology, such as additive manufacturing of rocket parts or composite materials.
- Method of operation claims protect new ways of using technology, such as orbital manoeuvres or debris capture. These are powerful but harder to enforce outside a conclusive national jurisdiction. Consider how such methods work with ground-based infrastructure, for example through remote control.
- Software and computer-implemented claims protect algorithms and control systems. These may be drafted as methods or as program product claims.
- Product-by-process claims protect new products that can only be defined by the way they are made, useful for items manufactured in microgravity, for example.
A particular patent application / patent can have a combination of claim categories (with some jurisdictional restrictions). The claim categories can be directed at different aspects of the same invention. For example, separate claims directed to the hardware itself, a method of using that hardware, a method of making the hardware, and a system including the hardware and other associated components.
Selecting the right claim categories
Patents and claims should also consider both currently possible and future-conceivable design-arounds. That is, how might a motivated would-be infringer or licensee attempt to navigate / avoid this claim? For the patent owner, the outcome of this design-around thought experiment, in combination with careful use of claim categories, can make life difficult for the would-be infringer or licensee. Perhaps an infringer can design around the apparatus claim, but the method claim is unavoidable. Perhaps the hardware claim is ultimately invalid but the prior art is less effective against the method claim, or vice versa. This is not an unusual scenario: leaving some claim categories to “save the day”. Again, judicious use of claim categories can increase the strength and value of a Space sector patent.
Furthermore, it is important to consider the feasibility of detecting infringement as a patentee. Can infringement be detected via reverse engineering? The most powerful claims are often those for which it is relatively simple to detect infringement. While infringement may be occurring, and infringement proceedings possible, claims with features that are difficult or impossible to identify in the infringing article / method, even if the feature is in fact present, are of potentially lower value than those on which infringement, if it’s taking place, is clear.
Not all claim categories will be possible, appropriate or valuable in a particular case. Though good patent attorneys should always consider different claim categories as means to protect the same invention in slightly different ways. In combination, claims of different categories can make infringement easier to identify and more difficult to avoid. Claim categories are nothing new of course. That said, there are plenty of practically unenforceable Space sector patents for fundamentally valuable inventions that would have benefited from some lateral thinking on claim categories.
Key Considerations
Always consider (or ensure your patent attorney is considering) the full range of claim categories for an invention. In doing so, consider design arounds, validity and infringement (both occurring and being detectable). Broad claims deter competitors but may be more vulnerable to invalidity; narrower claims are perhaps more likely valid on the face of it, but less of a deterrent. Both strategies in parallel may be appropriate for cost-effective pursuit of protection, with different aims. By choosing wisely and combining claims of different categories within the rights in your portfolio, you can build a portfolio that protects your technology, anticipates competitor / licensee behaviour, and supports growth from innovation to investment.
Get in touch with our Space Technology team today.
