The commercial spaceflight industry has been innovating for decades, so it's no surprise that countless patents for new orbital technologies, processes, and devices have been locked down by private companies. What is somewhat surprising, however, is that orbits can be patented. Well, sort of.
"It is important to keep in mind however that the orbits themselves aren't patented," he added, "useful systems which incorporate particular orbits, such as technological solutions for providing telecommunications which utilize equipment in those orbits, are patent-eligible."
So while a company couldn't attempt to patent a specific set of gravitational dynamics, it could exert control over an orbit by patenting the specific set of innovations needed to keep a satellite in that orbit.
"An example would be deploying a satellite in a highly elliptical orbit," Rush told me over the phone. He suggested the Molniya orbit, which is frequently used by the Russian aerospace community because it maximizes the time satellites can spend over the Northern hemisphere.
Companies that specialize in designing satellites for this orbital path can patent orbital technologies specific to that pathway. For example, in 2010, Boeing was issued US Patent No. 7,840,180, which describes new methods, devices, and maneuvers for satellite fleets occupying the Molniya orbit.
Another example is US Patent No. 5,410,728, which was issued in 1995 to Motorola, and outlines how a formation of several satellites can optimize cellular coverage. In both of these cases, the satellite orbits themselves are not subject to this patent; rather, the process of deploying them into those orbits for some use, such as telecommunications is patented.
"Patenting 'orbits,' if you will, is something that the telecommunications industry has done for a while," Rush told me. Indeed, Arthur C. Clarke flirted with the idea of patenting orbits all the way back in 1945. The geostationary orbit he proposed that year is now home to hundreds of satellites, and has been officially designated the Clarke orbit by the International Astronomical Union.
But as interesting as the history of orbital patent law has been thus far, its future is shaping up to be even more exciting. As space lawyer Joanne Gabrynowicz told me in a recent interview, today's aerospace companies may actually deliver on their promises of rapid human expansion into space.
"I've been in the space law business for 30 years," Gabrynowicz said. "What we have now, for the first time, are companies that have credible leadership teams who have good track records in other businesses. We have some real credible contenders for the first time."
Rush also anticipates a sea change in innovation and activity in the satellite industry, as it continues to mature over the coming years. "As more and more companies start commercial activities using satellites, and using new and innovative ways to do so, we should see an uptick in patent activity," he told me.
"We may also see the attendant uptick in patent litigation around some of those activities," he added. "I personally hope that's not the direction that we go. I hope there's a lot more licensing and a lot more cooperative ownership and stewardship of patents, rather than just suing each other. "
It's difficult to predict which way the scale will tip when it comes to this issue. Unfortunately, industry leaders often do lose stupid amounts of money in patent conflicts over emerging technologies. From the development of sewing machine, which has become the ultimate cautionary tale for litigation, to Apple's neverending parade of disputes, there is no lack of precedent when it comes to patent wars.
To that point, there are already some early rumblings of this effect within the private spaceflight industry, such as the recent disputes between SpaceX and Blue Origin over who has the patent on vertical sea landings of rocket boosters—a keystone maneuver in SpaceX's long term plans.
SpaceX's January 2015 attempt to land a rocket at sea. Credit: CNN/YouTube
There may also be tension between veteran spaceflight companies that date back to the first space race, and recent startup companies looking to carve out a new niche off-Earth.
"The interesting thing in the satellite industry, and to a lesser extent in the launch industry," said Rush, "is that we have players like Planet Labs and Planetary Resources and SpaceX—those are sort of upstart companies right?"
"But we also have some incredible legacy players like Boeing," he continued. "Those guys have been making satellites for 50 years, and they participate in the patent system very actively. There are new patents every week, it seems, in the satellite-related arts. So those guys may have less interest in being sort of collaborative or collegial, because they have less of a motivation to do so, because they're the incumbents."
Only time will tell whether the wealth of new satellite companies will be able to seamlessly thrive alongside the old guard, or whether industry rivalries will open a financial sinkhole of patent litigation. Rush isn't calling it at this point, but he does believe the spaceflight community can learn from the mistakes of the past.
"I would love to see the emerging satellite industry skip the 'sue each others pants off stage' and go directly to the patent pool stage," he said.
Your move, space companies. Don't mess it up!