Is the Sky the Limit?: Patent Implications of Discoveries Made in Outer Space

It has been less than a century since space flight was the province of science fiction. For the first fifty years of the Space Age, space travel was the exclusive province of national governments. Today, private companies have launched rockets that carry experiments and cargo to the International Space Station and have recently announced plans to explore the moon and planets. While perhaps only a footnote in this story of incredible scientific achievement, the evolution of space travel has implications for law in general, and patent law in particular.

The possibility of discovering useful materials or technology in space was recognized early in the space era, but the consequences for patentability did not receive attention until much later (and even now have been addressed incompletely). When only governments had the capability of space exploration, patentability was largely irrelevant. That is no longer the case—and it changes everything. This article focuses on the impact on patentability of earthbound inventions and the extent to which activities in space should affect patentability of inventions made on Earth.