The emergence and continued progress of commercial launch services has transformed space into a compelling frontier for innovation. Yet, patent infringement occurring in orbit is not a run-of-the-mill IP enforcement issue and can be difficult to address directly. This raises an important question: why invest in patent protection for technologies intended to operate in space? The answer lies in understanding where patent rights can be enforced, but also how patents create commercial value beyond litigation.
Ground-Based Protection Remains Essential
At present, space, including geostationary (GEO), low Earth (LEO), and medium Earth (MEO) orbits, is not generally regarded as a patent jurisdiction. As a result, patent rights do not automatically provide protection against the use of an invention once it has been deployed in these orbits.
However, this jurisdictional limitation does not prevent businesses from protecting space-related innovations. The primary route to protection is through patent rights in terrestrial jurisdictions where the technology is designed, manufactured, assembled, imported, tested, or prepared for launch.
For example, patents can protect the manufacture of a patented product, the use of patented manufacturing methods, or the importation of patented technology within jurisdictions where these activities occur. Consequently, an effective intellectual property strategy requires an understanding of the global landscape for manufacturing, launch services, and supply chains within the space sector.
Looking ahead, the same principle may apply to inventions developed or operated in space, provided those inventions ultimately produce a result with commercial relevance on Earth.
What Other Reason is there to Patent an Innovation Intended for use in Space?
This subtler answer lies in the broader value that patents provide.
A patent grants its owner the right to prevent others from exploiting a protected invention without permission. While enforcement ultimately depends upon legal action, the commercial value of patents extends far beyond litigation.
Indeed, despite the widespread perception that patents are primarily legal weapons, only a small proportion are ever litigated (c. 1% [1]). Their true value often lies in strengthening a company’s commercial position, supporting investment, and creating strategic opportunities.
Supporting Investment and Business Growth
One of the most significant advantages of a patent portfolio is its ability to enhance a company’s attractiveness to investors.
Granted patents and pending applications are visible intellectual property assets that demonstrate technological differentiation and long-term value. More importantly, patents enable businesses to discuss their innovations openly with investors, customers, suppliers, and potential partners.
This is one of the great paradoxes of the patent system: exclusive rights facilitate the sharing of knowledge.
Once a patent application has been filed, the innovator is no longer wholly reliant on secrecy. Businesses can market their technology, seek investment, and engage in technical discussions with greater confidence. Even at the application stage, a patent can act as notice to competitors that exclusive rights may soon be available, discouraging deliberate copying and strengthening commercial credibility.
Patents as Strategic Business Tools
Many businesses, from start-ups to global corporations, value patents not because they expect to litigate, but because patents influence behaviour across the market.
The Deterrent Effect
A patent effectively creates a protective boundary around a technology area, and multiple patents can provide an impenetrable thicket (a Briar Patch, if you will [2])
Competitors may hesitate to invest in developing similar technologies if there is a risk that the resulting products cannot be commercialised without infringing existing rights. This deterrent effect often begins as soon as a patent application is published, long before any patent is granted, because competitors know something pertinent exists, but (often usefully) do not know what the eventual scope of protection will be. Faced with the possibility of future restrictions or licensing obligations, some may choose to simply pursue alternative technical pathways instead.
As a result, patents can discourage both legitimate competitors and bad actors from entering a technology space that has already been targeted by an innovator.
Strengthening Customer Relationships
Patents can influence purchasing decisions and commercial relationships.
Existing customers may be less inclined to move to an alternative supplier if the incumbent supplier owns patent rights covering the relevant technology. Such rights create a degree of commercial stability and can reinforce customer loyalty.
Similarly, prospective customers may view a patented technology as evidence of innovation, technical expertise, and market leadership. Patent ownership can therefore increase confidence in a business and differentiate it from competitors lacking comparable patent assets.
Customers may also consider the risks associated with purchasing from a competitor whose products could potentially be accused of infringement. That is, concerns over supply chain disruption or future disputes can make engagement with the patent owner a more attractive commercial option.
Levelling the Competitive Playing Field
Patents are also valuable because they provide businesses with defensive leverage.
Companies that own patents are simply in a much stronger position when dealing with other patent holders. A competitor considering enforcement action may be less willing to proceed when there is a possibility of counterclaims based on the patent owner’s own portfolio.
Further more, in established markets, patents frequently act as strategic bargaining assets between competing participants. Collectively, the patent portfolios held by existing market participants can create significant barriers to entry for new competitors.
In this sense, patents are often part of the price of admission to a competitive technology sector, and so to participate effectively, businesses need intellectual property assets of their own.
Effectively, it is a case of “you have to be in it, to win it”, and interestingly, this should resonate well in the space industry (where businesses are, after all, all in the Space Race!).
Patents as Commercial Assets
Patents are more than legal rights; they are tradeable business assets.
They can be assigned, sold, licensed, or used as the basis for wider commercial arrangements. Licensing programmes may generate direct revenue streams, while cross-licensing agreements can provide access to complementary technologies and reduce barriers to collaboration.
Importantly, the commercial exploitation of a patent does not always require aggressive enforcement. In many circumstances, a negotiated licence may be preferable to litigation. Rather than seeking injunctions or damages, a patent owner may secure a reasonable royalty for the use of the patented technology.
Viewed this way, patent licensing becomes a familiar commercial concept: a cost of doing business that enables innovation while rewarding those who invest in that innovation’s development.
The Enduring Value of Patents in Space Technology
Whether or not a business ever intends to enforce its patents in court, a well-designed patent strategy can deliver substantial benefits.
Patents can attract investment, facilitate commercial discussions, deter competitors, strengthen customer relationships, support licensing opportunities, and improve a company’s strategic position within a competitive market.
For businesses operating in the rapidly evolving space sector, these advantages are often far more valuable than the possibility of litigation itself.
Patents remain one of the most powerful commercial tools available to innovative companies. For space technology businesses in particular, they provide the confidence to invest, collaborate, and grow, helping them pursue new opportunities while maintaining a strong competitive position back on Earth.
In short, while patent rights may not extend throughout space, the value they create very much remains grounded on Earth.
This article was prepared by Partner and Patent Attorney Jeff Clarke. For more information on how patent protection can help to add value to your space-based business, please contact him at jclarke@hgf.com.
[2] – https://memory-alpha.fandom.com/wiki/Briar_Patch
More articles from our World Space Week series below:
- Patents Beyond Earth: Is Space a No Man’s Land? Part 1
- Patents Beyond Earth: Do we need a Martian Patent Office? Part 2
- Sustainable Technologies in Space: Protecting Innovation for a Greener Frontier
- Materials at the Final Frontier: How Engineering Innovations Are Powering the Future of Space
- Feeding Space Travel: The Chemistry of Living in Space