Patenting space: promoting innovations and patents for exploring our final frontier

Whether you’re NASA Administrator nominee Jared Isaacman, Virgin Galactic Founder Richard Branson, Artemis mission specialist Christina Koch, or even fictional astronaut and self-proclaimed “space pirate” Mark Watney, setting out on our final frontier and exploring space requires the right technology. The technology associated with space exploration has come a long way from the once-cutting-edge systems that put Sputnik into orbit and allowed the Apollo 11 crew to land on the lunar surface. A nearly exponential surge in patent activity to space exploration, particularly over the past decade and a half, has captured a snapshot of these developments. Along with these technological advances, ambitions are growing too. There is a desire to go bigger, faster and further in space exploration.But as the ambitions have grown, more and more obstacles have emerged. Space exploration poses unique research challenges: the need for more efficient rockets to travel farther into inhabitable areas of space, food production for space settlements and preventive and responsive medical research on the potential detrimental impact of long-term exposure to the conditions of space travel. In response to these research challenges, inventors from across the space exploration sector have created new and exciting innovations — innovations protected by patents. Hundreds of thousands of patents are issued each year in the United States across a range of industries and disciplines. Hidden in this haystack of patents, however, could very well be the needles needed to solve each of these challenges and allow us to, in the words of Neil deGrasse Tyson, “push the boundaries of our existence.”There is some tension, however, between the space industry and patent law, with the value of the latter not always being recognized. Patents, however, contribute directly to the development of space exploration innovations by providing a way for innovators to receive compensation for their contributions, even when the path to market for a new innovation may be long or prohibitively expensive for small inventors whose innovations compete with the likes of NASA, Space X and Blue Origin. Even those small inventors can generate revenue from their creations through licensing.A patent system that accounts for the unique challenges of protecting space exploration technology will make patents more accessible to the space industry, thereby removing the perceived tension between patents and the space industry. For example, current patent laws only apply within a country’s borders, so acts or products that would otherwise infringe a United States patent on the ground may not infringe if they occur in outer space. But treaties that already accommodate coordinated patent applications and enforcement — such as the Patent Cooperation Treaty or the Unified Patent Court — can be updated to provide patent enforcement mechanisms for technology deployed in space. These changes could significantly increase patents’  value within the space industry.Patent Law OverviewBefore diving into the technology here, a quick primer on patent law may be useful. A patent is a legal mechanism that protects an invention, or aspect of an invention. In being granted a patent, an inventor (or their assignees/licensees) receives the right to exclude others from making and using the covered invention. Patents encourage innovation by providing exclusivity rights in exchange for disclosure of the technology resulting from potentially expensive research and development efforts. This allows inventors to recover the investments put into developing new technology by exclusively using and making the invention for a 20-year period, while providing the public with access to the technology’s teachings to further innovation even more.Patents and space explorationWhile patents are the primary mechanism for protecting inventions, the patent law system has shortcomings when applied to the space exploration industry. Most notably, patents are territorial. So, with some exceptions, U.S. patents generally give rise to an infringement claim only if the infringing activity occurs in the U.S. Such a limitation may cause issues to companies whose competitors can simply launch from another country to potentially avoid an allegation of patent infringement. Worse, competitors may be able to avoid infringement allegations by using patented technology in outer space because domestic patents may not be enforceable in outer space. Patent practitioners need to carefully draft patents so that competitors infringe on the ground and where a patent owner has intellectual property. ly, the Outer Space Treaty, to which 115 countries are parties, emphasizes that outer space is not subject to national appropriation by claim of sovereignty, and exploring outer space is the province of all mankind. This commons-minded approach to exploring outer space may conflict with the rights provided by patents to exclude others by potentially allowing competitors to freely infringe patents in outer space. This tension could be addressed, however, by expanding or amending international agreements covering outer space to afford limited patent protection for in-space operations. Another tension is the undervaluing and misunderstanding of patents by leaders in the space exploration industry. Elon Musk, for example, notably said that “patents are for the weak” and opined that they are designed to prevent rather than promote innovation. This point of view, however, goes against many others’ views of patents, including views by our founding fathers. Thomas Jefferson’s perspective that patents could encourage people to pursue ideas that would be useful to society and further the human condition has been influential in countless debates on patent rights, including issues before the Supreme Court. Kathi Vidal, former Director of the Patent and Trademark Office, has supported this viewpoint as well, remarking that intellectual property has the “purpose of incentivizing and protecting innovation for the good of the country—to create jobs and generate economic growth—and to solve the world’s biggest problems.”Further, there are leaders within the space exploration industry that are supportive of patents. Take former NASA Administrator Bill Nelson for example. In response to NASA’s $75.6 billion in economic output for fiscal year 2023, underpinned by 40 new patent applications and 69 issued patents, Nelson explained that “[o]ur work doesn’t just expand our understanding of the universe—it fuels economic growth, inspires future generations and improves our quality of life.” These benefits from space exploration (fueled by a healthy patent system) can be reaped by smaller innovators as well, who may not have the means to bring their technology to scale, because they can license their innovations to larger companies capable of doing so and get their returns that way. A more uniformly pro-patent perspective across industry leaders could go a long way in pushing for updates to these legal frameworks and allow for more effective patent protection for the space exploration industry. Despite these tensions, however, researchers are still innovating to address the physical and technological challenges space exploration presents. We’ve identified patents that have the potential to address some of these big challenges within the industry, to show the value patents can provide in exploring space.Challenge one: more efficient propulsionHumans need more efficient propulsion to explore the moon, other planets and beyond. Investigating planetary objects depends on the ability to carry out advanced maneuvers, which will require propulsion levels that are difficult to achieve efficiently. Further, many of the current systems are subject to limited lifespans due to degradation from use. However, the recently developed NASA-H71M sub-kilowatt Hall effect thruster (the “H71M thruster”) has the potential to greatly improve propulsion technology. U.S. Patent Number 11,540,381 was granted to NASA based on a July 17, 2020 filing. This patent protects technology to NASA’s H71M thruster. As background, Hall effect thrusters generate propulsion by using a magnetic field to ionize a propellant, usually xenon or krypton. The ionized gas is then accelerated through an electric field, producing thrust. While these types of thrusters already produce great thrust, the H71M thruster enhances the technology in three respects. First, it has increased propellant throughput over other Hall effect thrusters. An increase in throughput should lead to an increase in the thruster’s impulse, yielding more efficient propulsion. Second, it has a longer lifespan than other Hall effect thrusters. NASA’s optimized magnetically shielded (OMS) field topology deflects the ions as they accelerate through the electric field, preventing them from striking and eroding thruster components. Third, it is cheaper and more efficient to manufacture thanks to design and assembly improvements. Ultimately, the improved Hall effect thruster technology on display in the H71M thruster will give small spacecraft a greater ability to maneuver from low-Earth and geosynchronous transfer orbits to the Moon and Mars, respectively. Challenge two: agriculture in spaceAnother challenge limiting the capabilities of space exploration is the capacity to grow crops in space. In order to live in space, you obviously need to eat in space. If you want to expand past the limitations of eating only what you can bring with you, you need ways to make your own food. This is especially true with ambitions of permanent settlements on Mars or the moon. However, an important issue that complicates growing crops in space is oxygen use.While they produce more oxygen than they use, plants still require oxygen in their environment to thrive. If you’re able to have plants decrease their oxygen consumption, however, more oxygen would be freed up for vital use by people within the settlement. This is exactly what U.S. Patent Number 11,634,722, granted to Inari Agriculture Technology Inc. and filed on Jan. 22, 2019, sets out to do. The patent covers systems, methods and compositions to edit genes in plants. Specifically, it details using gene editing techniques to produce plant cells able to grow in hypoxic, or low oxygen, conditions. It further details obtaining a propagule or seed from an isolated or propagated gene-edited plant cell, thus giving rise to full plants able to survive in low oxygen.A full-scale implementation of this advancement could be a critical step in maintaining food supplies for long-distance space travel. Low oxygen-resistant plants would likely be especially useful for long-term travel in spacecraft where oxygen conservation could be particularly important.Challenge three: unknown physiological effects of long-term space travel A third and final challenge explored here is the uncertainty surrounding the impacts long-term exposure to the conditions of space travel may have on human physiology. As of now, common issues observed include decreases in bone and muscle mass, decreases in blood volume and arrhythmias. There are also concerns regarding cancer and neurodegenerative disorder development to radiation exposure. The longest continuous stint in space was 437 days, a record held by Russian cosmonaut Valeri Polyakov. Astronaut Frank Rubio holds the American record of  371 days. While both are considerable durations to be off-world, it remains to be seen how longer-term or permanent exposure to conditions like microgravity and increased radiation will affect the human body. This uncertainty poses the obvious challenge of potentially negative physiological effects, but it also poses the moral challenge of how to elucidate these uncertainties. Emulate Inc.’s U.S. Patent Number 11,697,792, filed on December 12, 2019, describes a microfluidic platform intended to allow for such investigation.Microfluidic platforms, commonly called “chips”, allow researchers to manipulate and process tiny volumes of fluids through channels. While they have numerous applications, relevant here is their application in simulating tissues and organs. Using chips, cellular microenvironments can be created that mimic the environments of human organs. The patent here covers a type of microfluidic platform known as a “brain-on-a-chip”, containing neuronal and vascular endothelial cells to simulate the effects of different conditions on the brain. This invention is intended to be used in experiments aboard the International Space Station to see how space travel specifically affects the brain.Investigations using these platforms could provide eye opening results into the effects of space travel conditions on the human brain, as well as broader insights if implemented with other organ and tissue systems.Looking aheadThere is still certainly a long way to go before we reach the point of long-term space exploration or permanent space settlements. It will take technological leaps and bounds  before we can confidently and safely achieve these ambitions. The patents we highlighted represent impressive improvements to technology, but even with these improvements, we aren’t where we need to be to achieve long-term space travel or permanent settlements. We still need propulsion systems that can reliably and efficiently take us to Mars, the edges of our solar system and beyond. We need systems that can sustainably feed entire settlements of space explorers. And we need to know the potential negative effects of space exploration on the human body with more certainty and then develop ways to counteract them.To take these leaps and bounds, though, innovators need the protection and assurances that patents provide. Without that, innovators (and their backers) will not have the security of knowing there is an avenue to bring about these cutting-edge technologies while getting their due return on their. To ensure that innovators can reap the benefits that patents provide, we need to have sufficient systems in place to enforce patent protections. It is these assurances that give innovators the freedom to develop the technology needed to achieve these exciting space exploration ambitions. However, whether looking at the three patents above, SpaceX’s “chopsticks” catch of their Super Heavy booster, or other recent examples of innovations in the space exploration industry, there is plenty to be excited about as innovators continue to pursue our final frontier.Lionel Lavenue’s practice focuses on patent trial litigation, including 20 bench or jury trials and on creating and managing large patent portfolios. With experience in over 200 patent cases, he has managed or served as first chair in numerous district court litigations, including more than 60 cases in the E.D. Texas, almost a dozen patent infringement cases and/or matters under Section 1498(a) in the U.S. Court of Federal Claims, more than a dozen disputes under Section 337 before the U.S. International Trade Commission (ITC), and multiple arbitrations.Joseph Myles focuses on patent litigation in a range of patent venues, including district courts, the Patent Trial and Appeals Board (PTAB) of the U.S. Patent and Trademark Office (USPTO), the Court of Appeals for the Federal Circuit (CAFC), and the ITC. Joseph oversees patent portfolios ranging from banking software applications to space settlement technologies.Josh Sprague Oliveira is a law student at the University of New Hampshire Franklin Pierce School of Law. After graduation, he will join Finnegan, Henderson, Farabow, Garrett & Dunner, LLP as an Associate working in the patent law field.SpaceNews is committed to publishing our community’s diverse perspectives. Whether you’re an academic, executive, engineer or even just a concerned citizen of the cosmos, send your arguments and viewpoints to [email protected] to be considered for publication online or in our next magazine. The perspectives shared in these op-eds are solely those of the authors.