Can Patents Protect Ingenuity?

Earlier this year, NASA’s Perseverance rover successfully landed on the surface of Mars. While the main objectives of the mission focus around astrobiology and the search for ancient Martian environments that could have supported life (and evidence of former life in these habitats), the rover is also testing out a number of new technologies.

One of these new technologies is Ingenuity, a small drone carried by the rover, which undertook a number of successful test flights representing the first powered and controlled flight on another planet. Another experiment on Perseverance, a device called ‘Moxie’, produced oxygen from the carbon-dioxide atmosphere of Mars.

These demonstrations are very impressive technologically, and are clearly paving the way for increasing human activity on Mars with the eventual goal of sending humans to the red planet. However, it’s not just NASA that’s got their sights set on Mars, with China recently landing their Zhurong rover on Mars. As well as other states, commercial operations are also setting their sights on extra-terrestrial exploration.

Of these non-governmental companies, SpaceX is no doubt the most well-known enterprise, though there are also a number of “behind the scenes” actors in the space sector making specialised components and equipment for rockets and satellites. A key difference between these commercial companies and state agencies such as NASA is that they are looking to (eventually) turn a profit. Unsurprisingly, sending things to space is an expensive affair, and these companies will need to leverage every advantage they can to maximise their returns on their investments.

One of the most effective ways to maximise a return on the investment made into developing new technologies is to patent the inventions that result from that research. Patents give the patent proprietor the right to prevent others from using the patented invention for a limited period of time, allowing the patent proprietor to enjoy a market monopoly for that period. This can help them to recoup their R&D costs as well as (hopefully!) generate a profit, which in turn can be used to fund further R&D.

Due to the cutting-edge nature of space technologies, this would appear to be a field that is primed for utilising the patent system. For example, consider Ingenuity, the helicopter drone that NASA flew on Mars. This was no ordinary helicopter. One particular challenge it had to deal with is the fact that Mars’s atmosphere is only about 1% as dense as that here on Earth, making lift much harder to generate (an effect only partially offset by the lower gravity on Mars). To overcome this and other problems associated with flying on Mars, NASA invested around $80 million to design and build the drone. This highlights the amount of R&D that goes into space exploration, even for something which back on Earth would be considered a simple piece of technology.

Unfortunately, things are not quite so straightforward for inventions utilised in space (or indeed on Mars) compared to their terrestrial cousins. This is because patents are territorial – they only stop a competitor in a specific jurisdiction. For example, a GB patent can be used to protect against acts performed in the UK, but a separate US patent will be needed to stop a competitor from acting in the US. Given that there is no “space patent” or “Mars patent”, how useful are patents in the space sector, and for protecting inventions such as the Ingenuity drone and MOXIE that are used extra terrestrially?

A patent with device or apparatus claims can provide protection if the claimed device is fully assembled on Earth prior to launch. Having a patent in the country (or countries) where the device may be manufactured will enable the patent proprietor to stop a competitor from building the patented device in that country. This can be an effective route to protection, though unless specialised equipment or processes are needed in the manufacture, it could be possible for a competitor to circumvent the patent protection by building the patented device in a different country not covered by a patent.

A more useful and cost effective strategy could instead (or additionally) be to obtain patents in launch states. This would enable the patent proprietor to prevent the patented drone from being imported into a given launch state, and thus prevent it from being launched (and hence used). Because there are relatively few countries that have the capability to launch objects into space (only twelve states have active satellite launch facilities), a high level of protection could be obtained this way with relatively few patents. This would be a good strategy for protecting a device such the Ingenuity drone or the MOXIE oxygen equipment.

Indeed, a lawsuit was brought against one of the contractors that contributed to Ingenuity claiming that Ingenuity infringed US patent 8,042,763. Ultimately, the litigation was unsuccessful, though it highlights that whilst on Earth, physical devices and machines that may be designed to be sent to space will still be treated like any other terrestrial invention.

The same cannot be said for method and system claims, however. These claims are less effective when they cover methods or systems used in space or on another planet. This is because the invention isn’t actually used or put into effect whilst still on Earth. With the exception of the US, which considers space objects under its jurisdiction to be within its territory (and hence covered by US patents), once in space an object is not considered to be within the territory of any nation, and so any method performed by a device (or devices) in space or on another planet will not fall within the scope of a patent. Therefore, a claim covering the method performed by Moxie to convert carbon-dioxide into oxygen, for example, would likely not be as useful as a claim to the apparatus itself.

For now, we are still at the stage of assembling rovers, drones and spacecraft here on Earth before launching them to their final celestial destination. The patent system does, therefore, provide a good level of protection for such inventions. It can be more tricky, however, to protect methods and systems which are only implemented after they have left Earth. Careful drafting and an understanding of the limits of the current patent system are therefore important considerations when looking to protect and exploit inventions used in space.

Here at Reddie & Grose LLP our team has both the technological and legal understanding to ensure the best possible protection is obtained, even for inventions used in space. We also have experience in obtaining global protection for our clients, including in relevant manufacturing and launch states such as the US, China, Japan, Europe and Russia. If you would like to know more, please get in contact with one of the team.

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.