Date: 1 March 2021
Our Partner Cornelius Mertzlufft-Paufler comments on the IP considerations around NASA's recent landing on Mars:
Congratulations, NASA, on this impressive achievement. It certainly took a lot of innovation to get to Mars.
Many of these innovations will, without doubt, have been patentable.
Which of them are worth patenting? To answer this difficult question it helps to remember the purpose of patents as prohibitive rights. So, firstly, there has to be competition. Otherwise, nobody would be interested in designing around your patent or licensing it. No-one would infringe. This may rule out many of those innovations that were necessary for landing on Mars, but see our discussion below on who has been filing what is this field.
Secondly, there has to be a desire to use your solution among your competitors. This rules out solutions for problems that originate from your particular constraints and history (like reusing something you already have for a new purpose).
Thirdly, the solution has to be difficult to bypass. Here, it is useful to examine external constraints like regulations and standards that constrain the designer and limit the ability to design around a patented solution.
And do not overlook the value of solutions that are the easiest to implement. These may be the most valuable. They are often the ones that a good designer dismisses as merely trivial. But if they are new, then speak to your patent attorney. You may be surprised how an apparently trivial idea can be patentable.
To summarize, a valuable invention may be an easy solution to a problem that your competitors will face, too. These will be top priority for patenting.
The Patents databases are a rich resource for research into technology. It may surprise readers to know that there is even a class for planetary rovers and the like. It is International Patent Class B64G: “Cosmonautics; Vehicles or Equipment thereof”.
A plot of patent applications filed (by year of filing) against recent missions shows a possible correlation. Chinese universities and technology institutions have been particularly active in the lead-up to or around the time of announced missions.
The Chinese Lunar Exploration Program, which has been going since 2003, has sent two rovers to the Moon. These were Yutu 1 (launched in December 2013) and Yutu 2 (launched in December. 2018). In July 2020, China launched a mission to send a rover to Mars. We have omitted 2020 data from our chart, because patent applications from that year are not yet published.*
The indicated US missions have been to Mars. The Curiosity Rover was launched in 2011, and the InSight Rover was launched in 2018.
The different primary purposes of the vehicles and equipment which are the subject of these patent applications can be seen from keyword searching (e.g. “moon” or “lunar” and “Mars”).
We also have data for activity in 2017 in Europe. The European Space Agency launched a probe and lander (the Orbiter and Schiaparelli) in 2016 to search for gases such as methane in Mars’ atmosphere and to test key technologies in preparation for subsequent missions to Mars. Often there are many different countries involved in any one project of the European Space Agency, and we see this in the data.
We also see patent applications filed from Russia and India, albeit at a lower base level.
The data shows an increased number of participants in cosmology. It is no longer the domain of one governmental institution. There may not be an open market for equipment, but there is competition for research contracts and for the supply of equipment, and these contracts may be worth many millions of Euros. In such a market, a patent only has to be infringed once for it to prove its worth.
*Any searching of this nature will reveal increased activity in China. It is by no means characteristic of this particular technology class. There are political reasons and incentives for Chinese applicants to file patent applications, and the data often includes utility models, design patents or “petty patents”. We note that only about 10-15% of the cases we have identified fall into this category.
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