Are Satellites Beyond The Reach Of Patents?

• Published date: 11 July 2022
• Subject Matter: Intellectual Property, Transport, Aviation, Patent
• Law Firm: Maucher Jenkins
• Author: Mr Hugh C. Dunlop and Elliot Krishek

Low Earth Orbit (LEO) Satellites have been much in the news recently. OneWeb has already launched over 350 LEO satellites and SpaceX has launched over 1700 of its Starlink satellites. Both companies have plans for many more.

Each satellite is packed with innovation, and the question arises "are they beyond the reach of patent infringement?"

The United Kingdom Patents Act 1977, for example, says that a patent is infringed by certain acts done in the UK in relation to the invention without the consent of the proprietor of the patent while the patent is in force. There is an exemption (section 60(5)(e)) for aircraft and for vehicles that temporarily cross the UK, not limited to its airspace, but there is no specific exception for objects in space. So a number of questions arise, including the question of whether it matters if the satellite is geostationary and permanently in orbit over the UK or merely crossing the UK on a regular schedule.

The answer lies not in the Patents Act but in the Outer Space Treaty of 1967, of which 111 nations are signatories. The Treaty was primarily motivated by the desire to ban nuclear weapons in space and provides that the use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind. It provides that outer space is not subject to national appropriation by claim of sovereignty. But these lofty principles do not absolve satellite-launching companies from terrestrial laws. Ownership of objects launched into outer space is not affected by their presence there or by their return to the Earth, and states who are parties to the Treaty must carry on activities in the use of outer space in accordance with international law. In particular, states and their incorporated companies must register the objects they launch into space, and Article 8 of the Treaty provides that a state shall retain jurisdiction and control over an object in outer space if it has registered that object.

Can a satellite in space be "in" the UK? First, let us clear up any doubt over what is meant by "outer space". Outer space s merely space beyond the effect of the Earth's atmosphere. The term applies to all space above the K'rm'n line, which is approximately 100 kilometres above sea level. Below the K'rm'n line, the Earth's atmosphere acts on an object to slow it down and cause it to fall closer to Earth and enter or re-enter the Earth's atmosphere. Below the K'rm'n line, objects can be steered by air deflecting...