It’s 50 years since man walked on the moon, yet the thought of having factories in space that could manufacture products has, until recently, been considered something of science fiction.

And so, the commercialisation of space has allowed private companies to conceive and reduce to practice inventions in space. For example, Made In Space Inc. recently filed a patent for preparing ZBLAN optical fibers in space, as the presence of microgravity helps to reduce occurrence of manufacturing defects that would otherwise occur on Earth. Procter & Gamble has also recently filed patents for manufacturing methods that are performed in space.

As previously discussed, protecting intellectual property for space-related technology is more complex than on Earth, since space is not defined by a jurisdiction. When looking to protect space-related technology, it is therefore important to consider where a patent jurisdiction ends and where space begins.

For example, under s.13 of the Australian Patents Act 1990, a patent has effect throughout the patent area, where the patent area is defined as:

(a) Australia; and

(b) the Australian continental shelf; and

(c) the waters above the Australian continental shelf; and

(d) the airspace above Australia and the Australian continental shelf.

The geographical boundaries for (a)-(c) are generally easy to determine. However, the geographical boundary for “airspace” in (d) is not clear, partly because “airspace” is not defined in the Patents Act 1990 and the Explanatory Memorandum provides no further guidance, so it is difficult to know where the patent area in the airspace above Australia ends.

Looking at property law, the starting point in determining the airspace defined by a property boundary is to assume it extends forever into the heavens and to then determine what restrictions and limitations apply e.g. commercial airspace. Intrusions into airspace may amount to trespass if the intrusion is at a height potentially necessary for the ordinary use and enjoyment of the property owner. However, the ordinary use of a patented invention is likely to be technology dependent, so looking at traditional property law to determine the “airspace” may not provide sufficient clarity over its meaning. For example, the ordinary use of consumer drone technology is likely to be different to that of jet or rocket technology.

Looking further afield, the Australian Air Services Act 1995 and Civil Aviation Act 1988 do not define airspace, but they both define an aircraft as “any machine or craft that can derive support in the atmosphere from the reactions of the air…”.

The start of space itself is also not clear. The Karmen line (100km altitude) is generally considered to be the start of space. At the Karman line, the atmosphere becomes too thin to support aeronautical flight, since a vessel at this altitude would have to travel faster than orbital velocity to derive sufficient aerodynamic lift to support itself. However, not everyone agrees with the 100km altitude of the Karmen line, with the US defining the start of space at an altitude of 80 km. At the October 2019 International Astronautical Congress, the International Astronautical Federation is also looking to redefine the Karmen line and the boundary of space.

The consistency of the definition of the Karmen line and the definition of aircraft in the Air Services Act and Civil Aviation Act would suggest that the boundary of “airspace” for e.g. the “patent area” of s.13 of the Australian Patents Act 1990 is likely to be defined by the Karmen line. However, until an international consensus can be reached, or judicial precedent provides otherwise, the specific boundary of “airspace” for the time being remains unclear, thus likely to be an area the subject of further scrutiny, including judicial scrutiny.