25/03/2021
Transmitting solar energy generated in space back to Earth has long been the subject of science fiction, first appearing in Isaac Asimov’s 1941 short story, Reason, where solar energy is converted to microwaves by a space station, and beamed back to nearby planets.
The science that underlies extra-terrestrial solar power is, in fact, highly plausible. Utilising solar energy in this way has a range of advantages over conventional terrestrial solar power generation. For example, unlike terrestrial solar power generation which can only generate power during daylight hours, extra-terrestrially-generated solar power will be available 24 hours a day as the energy collection is performed in the space where the sun never sets. This can obviate the need for large-scale energy storage facilities. Moreover, extra-terrestrial solar spectrum (AM0) is free from losses caused by the Earth’s atmosphere. This can lead to higher power generation rate when compared with terrestrial solar power generation under the standard AM1.5G spectrum.
Technical and economic constraints have, until recently, prevented the solar technology from getting off the ground. However, recent technological advances in the field of lightweight solar panels, wireless power transmission, and lower cost commercial space launch, mean that the concept might actually be technically and economically viable.
The UK government recently commissioned their own research into space based solar power systems, and, earlier this year, Pentagon scientists successfully tested a solar panel in space, finding it to be capable of beaming electricity back to Earth.
Patents are an important tool for companies investing time and money into innovative technology. They provide an exclusive right for the owner of the patent to economically exploit an invention, as a return on their research and development costs. But patents are national rights. This means that a UK patent provides rights in the UK, whereas, for example, a US patent is needed to protect the invention in the US.
This makes inventions in space a complex area, as discussed in detail by Andy Davies in our earlier article. Under international law, an object that is launched into space from a particular country is subject to the jurisdiction of that country. But this does not mean that the object is in that country. The US has specific provisions under which an object launched into space from the US that performs a patented process is deemed to be performed within the US. However, corresponding provisions to do apply in other countries, meaning that the protection afforded by the US provisions could be easily circumvented by launching from a site outside the US.
In the UK, a patent covering an object would be infringed if a competitor were to both manufacture the object in the UK and launch it into space from the UK. This is probably also the case for objects imported into the UK. But what if the object is assembled in space? One of the biggest technical issues to be overcome in establishing space-based solar power is assembling the satellites in orbit, which has not been done before on the scale required. Protection for innovations involving the assembly or interaction of parts only once they are in space, and thus outside the UK, is not so clear cut. The situation becomes yet more complicated if the solar power station involves a network of separate satellites, potentially launched at different times and from different jurisdictions.
The need to close this gap in international patent law and provide fair protection for innovators is recognised by organisations such as the World Intellectual Property Organisation (WIPO) and the European Space Agency (ESA), but it remains to be seen how, and when, the law might be modified.
For now, the safest option is to draft patents to include claims that would be infringed on earth. If possible, the patent should include separate claims to individual elements that are assembled on earth, as well as the assembled product or network of satellites that is finally deployed in space. In principle, a properly drafted claim directed to the elements of a satellite could be infringed by a kit containing those elements launched from earth, even if the satellite is ultimately assembled in space. However, care must be taken where the invention lies in the configuration of the satellite once it is assembled and in use. In this case, thought should be given to whether a claim can be drafted to features which enable that configuration, rather than the configuration itself.
It is also important to be mindful of what can be protected in different countries. The specific provisions in the US, for example, regarding inventions in space, justify the inclusion of claims that would be infringed by an object in space, even if infringement under UK law seems questionable.
And of course, cooperating ground-based systems and operations on earth should not be forgotten. In the context of space solar, patent claims protecting aspects of the ground-based receivers and their integration into the grid may prove critical.
At Reddie & Grose LLP, we have the specialist knowledge and experience to draft meaningful and commercially useful patents for our clients, taking into account an understanding of how and where inventions are to be deployed, as well as a detailed understanding of the underlying technical concepts.
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.
