As private companies enter and compete in the field of rocket launch and space services at an ever quickening pace, space law is becoming a burgeoning area of legal practice. Many ventures are bringing considerable expertise to bear on all areas of earth and space sciences, such as the development and launching of new rockets for space tourism, lunar and inter-planetary use, in addition to the design of increasingly small and highly specialized satellite payloads. The foundational document of space law, the “Outer Space Treaty”, lays out, for instance, proscriptions against weaponizing space, as well as national appropriation of planets and other solar system bodies. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205. Though explicitly directed toward state actors, it has long been debated whether private entities may be immune from such prohibitions. Typically however, the practice of space law has dealt with more mundane (inasmuch as rocket launches can be considered “mundane”) issues of insurance and liability, licensing and contracts, environmental protection, as well as export control agreements and other international treaties.

An illustrative example is the explosion and loss of Orbital Sciences Corp.’s (now Orbital/ATK) Antares rocket along with its Cygnus capsule. The launch to resupply the ISS (International Space Station) was scheduled to take place on October 28, 2014 from Virginia’s Wallops Flight Facility launch complex, in Maryland’s own backyard. Although ignition was successful and the unmanned rocket began its ascent, a malfunctioning first-stage engine caused a catastrophic explosion several seconds after lift-off. (Apr. 14, 2015). The contract between Orbital and NASA included certain milestone payments: one for ignition and liftoff and a separate one for “mission success”, that is, delivery of payload. Since Antares successfully lifted off after ignition, Orbital received payment from NASA for that portion of the contract, while it did not receive payment for delivery due to the loss of the Cygnus payload during the explosion. Orbital had however purchased insurance coverage for the payload delivery portion of the mission, and was therefore compensated for that loss. Thus they essentially suffered no financial loss as a result of the explosion, but have voluntarily paid a portion of the expenses to repair the launch facilities.

Until very recently, intellectual property rights pertaining to space have not been the focus of much legal attention for practical reasons: humans haven’t been in the habit of patenting, copyrighting, or trademarking anything while in or near space. That is beginning to change as SpaceX battles Blue Origin in a patent dispute concerning a feat of engineering that, if successful, will probably revolutionize the rocket launch business. (Mar. 16, 2015). SpaceX, founded by Elon Musk, is one of the key launch providers in the space industry for both private clients as well as NASA, as one of its cargo suppliers to the ISS. Though long a staple of science fiction, vertical landing of rockets has never been successfully achieved. Rockets are generally non-reusable. Although some types of solid rocket boosters (SRBs) can be recovered and reused, like those that were used with the Space Shuttle, the majority of booster stages employing liquid propellants are expendable, falling into the ocean or burning up in the atmosphere after delivering their payload. SpaceX is trying to ameliorate that waste and expense by perfecting land and sea-based vertical landing and recovery of a rocket booster stage, the Falcon9, rendering it reusable and thus saving millions of dollars in launch costs, in addition to quickening the turnaround time for new launches. To date, there have been two landing attempts at sea, both failures, though the attempt in April, 2015 nearly succeeded. (Apr. 15, 2015). Aside from the technical challenges, there’s only one thing standing in SpaceX’s way—Blue Origin. Blue Origin, founded by Amazon’s Jeff Bezos, is also developing a reusable rocket, “New Shepard”, which too will employ vertical landing/recovery, and is the subject of the dispute with SpaceX.

Blue Origin was granted Patent No. 8,768,321 (the ‘321 patent) on March 14, 2014, for “Sea landing of space launch vehicles and associated systems and methods”, with a priority date of June 15, 2009. The patent included fifteen claims for methods and systems of launching a rocket, powering off a booster stage with separation from the payload section, and then reigniting the stage for descent, orienting it vertically with its tail section toward the ocean, and ultimately landing it upright on a platform at sea after receiving positional information of the platform. Blue Origin however has never put the patent to practice in an actual launch scenario. On August 25, 2014, SpaceX petitioned for an inter partes review (IPR) of the ‘321 patent. Space Exploration Techs. Corp. v. Blue Origin LLC, Case IPR2014-01376, Paper 2, (P.T.A.B. Aug. 25, 2014) (Petition for Institution of Inter Partes Review). IPR became available under the America Invents Act (AIA) on September 16, 2012, as a new avenue of challenging the validity of an issued patent, replacing inter partes reexamination. 35 U.S.C. § 311. SpaceX alleged in its petition that Claims 1-13 were anticipated by and obvious over a technical publication by Ishijima (a primary reference used to disclose the stage separation and oriented recovery scheme described in the ‘321 patent) in combination with several other patents. IPR2014-01376, Pet. at 4. Meeting the standard for commencement of review described in 35 U.S.C. 314(a), “that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged”, an IPR was instituted on March 3, 2015. IPR2014-01376, Paper 7, (P.T.A.B. Mar. 3, 2015) (Decision Granting Institution of Inter Partes Review). The PTAB has up to a year to conclude the proceedings. 35 U.S.C. § 316(a)(11).   Interestingly, the PTAB did not grant a separate petition by SpaceX concerning claims 14 and 15, which covered a system using the powered landing/reuse feature. Space Exploration Techs. Corp. v. Blue Origin LLC, Case IPR2014-01378, Paper 6, (P.T.A.B. Mar. 3, 2015) (Decision Denying Institution of Inter Partes Review). Both were means-plus-functions claims deemed indefinite by the Board due to lack of a corresponding structure described in the specification, and therefore “not amenable to construction.” Id. at 8. Allegations that claims are unpatentable via IPR are limited to anticipation and obviousness, not indefiniteness. 35 U.S.C. § 311(b). Thus, the Board concluded that they could not determine whether SpaceX could show a reasonable likelihood of prevailing on those claims. Id. at 9.

In the meantime Blue Origin filed for a reissue application of the ‘321 patent, on December 3, 2014. Application No. 14/559777 included an amended specification and substantial number of new claims. Reissue applications under 35 U.S.C. §251 endeavor to correct errors in an original patent rendering it wholly or partially invalid, and if a new patent is granted, the ‘321 patent would be surrendered. 35 U.S.C. § 252. The possible resulting scenarios of the prosecution of this application and the outcome of the IPR are intriguing to say the least. Obviously the most devastating result for Blue Origin would be if the IPR was successful and all original claims of the ‘321 patent were ruled invalid, along with a failure to receive a reissue patent. SpaceX could even petition for an IPR on the reissue patent as well. But a more interesting case is if claims survive, via IPR or reissue, with additional limitations, which, given the seemingly strong prior art references cited by SpaceX, would likely be rather narrow in scope. For instance, the specter of intervening rights arises if a reissue is granted and any of the (narrower in scope) patentable claims read on SpaceX’s activities. Liability for infringement of these product claims could be avoided if the infringing activity began prior to the grant of reissue, or if “substantial preparation was made before the grant of reissue.” Id. The dispute at hand however centers essentially on method claims. In that event “the court may also provide for the continued practice of any process patented by the reissue that is practiced, or for the practice of which substantial preparation was made, before the grant of the reissue, to the extent and under such terms as the court deems equitable for the protection of investments made or business commenced before the grant of the reissue.” Id. SpaceX, which already had stocks of booster stages on hand and had begun landing attempts using the methods described in the reissue application, is in good position to escape a determination of infringement through such equitable intervening rights.

The preceding engagements are just a small taste of the sorts of intellectual property topics currently related to space activities. Copyright issues are also becoming manifest in at least two prominent arenas: imaging and 3-D printing. As more companies build and orbit more specialized and sophisticated imaging satellites, ownership and associated rights of those collected images will need to be carefully spelled out in any business contracts. Additionally, activities aboard the ISS, specifically the production of 3-D printed tools and other objects, encounter both international treaty as well as copyright. To date there have been over 20 items produced by 3-D printing on the ISS. (Jan. 27, 2015). The Maryland IP attorney will need to pay close attention to these rapidly growing list of issues, given the proximity of numerous agencies associated with the space industry: U.S. Patent and Trademark Office, the Mid-Atlantic Regional Spaceport (MARS) at Wallops Island on Virginia’s Eastern Shore, NASA Headquarters and NASA/Goddard, NOAA, in addition to the army of private tech companies dotting the DC and northern Virginia suburbs.