21/01/2021
The era of satellite based broadband has now launched in the UK, with Starlink, another project of the Tesla and SpaceX founder Elon Musk, being granted a license by Ofcom to begin a limited trial. And while Starlink may be the first, they certainly won’t be the last. A cluster of other companies have launched in this sector, each with the aim of using a constellation of (read “awful lot of”) networked satellites to provide global broadband coverage. Notable competitors include One Web, which is back to launching satellites after being rescued from bankruptcy last year by the UK government and Indian conglomerate Bharti Global, and Amazon’s Kupier Systems, to name but a few. The EU have also announced plans for their own system, following the Galileo global positioning system.
Whilst there are some lingering concerns, notably about the impact of large constellations of satellites on ground-based astronomy, as well as the increased risk of collision between satellites due to the enormous number of satellites in the proposed constellations, these systems promise to dramatically increase the ability of remote communities to access fast broadband and to provide a convenient alternative to digging up roads to lay fibre-optic cables. For many people in the near future, the next time they upload a picture of their preferred Star Trek captain to the internet, it may, quite literally, get beamed up into space. Yet the market potential of the companies hoping to get into this space is no joke, with the space broadband sector predicted to take off over the next 20 years and to be worth an astronomical $400 billion by 2040.
Nevertheless, even with the likes of SpaceX driving down the cost of commercial satellite launches, getting hundreds or even thousands of satellites into space is a costly undertaking. Given the large investment needed to develop and deploy a broadband satellite constellation, maximising the return on investment will be crucial. The companies at the forefront of this sector will no doubt be looking to patents to protect their innovations and provide them with an edge over their competitors, helping them recoup their investments. Indeed, a brief search reveals a number of patent applications in the name of Airbus OneWeb Satellites, the joint venture between Airbus and OneWeb to deliver the satellites required for the OneWeb constellation.
However, these systems of multiple satellites highlight one of the current voids of international patent law – protecting inventions used in space. As I discussed previously, patents are territorial, only providing protection within a given territory, and so protecting inventions that are used in space raises unique challenges as space is not within the territory of any nation. This is especially so for inventions that relate to a system of satellites when the inventive aspect of the system is only put into effect once the satellites are in space. This is because at no point is the invention ever put into effect within a single jurisdiction on Earth, as is required for patent infringement (regarding indirect infringement in the UK, it seems unlikely that the double territorial requirement would be met – again see the discussion of whether the use of a satellite system could be considered to be within the UK in my previous blog). An example of such a situation where an invention is only put into effect in space might be a new and inventive method of distributing a communication through a plurality of different satellites.
Starlink, launching from the US, will be able to benefit from (or be hindered by) 35 US Code 105 which effectively means that objects under US control in space are treated as if they were in the US for the purposes of patent infringement. Therefore, a US patent can be used to prevent inventions being implemented in space on US satellites. However, other jurisdictions do not have equivalent laws, meaning that such protection could potentially easily be circumvented by using a different launch state.
Given that the value of the space broadband sector is predicted to rocket upwards, and the importance that system and method inventions used in space will no doubt have to both the space broadband sector and the space sector more generally, it is important that efforts are made to acknowledge this current gap in the law and to harmonise international patent law so that innovators can get fair protection for their inventions. Indeed, this is a need recognised by organisations such as the World Intellectual Property Organisation (WIPO) and the European Space Agency (ESA). As pointed out by the ESA, one simple solution (for now) that addresses some of the problems would be for each country to have an equivalent to 35 US Code 105. As each space object is currently launched from a country on Earth, this would mean that each space object would be protectable by obtaining a patent in the country from which it was launched. Nevertheless, this solution still remains imperfect as such protection could potentially be avoided by launching different parts of a system from different jurisdictions.
What is clear, however, is that special care must be taken when drafting patents relating to inventions that will be used in space if meaningful and commercially useful protection is to be obtained. Here are Reddie & Grose LLP, we have the specialist knowledge and experience to ensure that these types of inventions are protected in the best possible way for our clients.
EU must ‘move at speed’ on space broadband network – BBC News
Elon Musk’s Starlink given green light in UK – BBC News
OneWeb satellite company launches into new era – BBC News
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking any action in reliance on it.
