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Wacky Patents
A satellite missed its orbit. The problem can be fixed but, believe it or not, Boeing has a patent on using the moon, i.e. gravity, to change a satellite's orbit! The patent probably wouldn't hold up in court but because of a different lawsuit Boeing is threatening to sue anyway if the firm uses the procedure. Since the costs of a lawsuit are high and the satellite is insured, down it may come.
More here including interesting material on space salvage. Hat tip to Boing Boing. Tabarrok on patent reform here.
Posted by Alex Tabarrok on April 11, 2008 at 12:51 PM in Law | Permalink
Comments
In honor of another fellow who tried to use the power of the state to limit the effects of the moon's gravity, I suggest that we call this the "King Canute Patent."
Posted by: Grant Gould at Apr 11, 2008 1:25:19 PM
Unreal, is this late from 04/01?! ;-)
Posted by: Speedmaster at Apr 11, 2008 1:28:12 PM
Actually the situation now appears to be a bit different that you present it:
The satellite, even if it uses the moon gravity procedure, will not have enough fuel to make it into geosynchronous orbit, making the satellite a lot less valuable than the cost to launch it. However, if the company is "forced" to deorbit the satellite, they will get the full value of the satellite from their insurance company, and launch another one.
The company launching the satellite WANTS to be a "victim" of the patent in this case!
Posted by: Rex Rhino at Apr 11, 2008 1:33:08 PM
Thanks for the pointer to the article. I missed it when it came out.
One aspect of the patent system that has recently gotten more attention is the value that patents have as an alternative to trade secrets in promoting joint development efforts. You might check it out since this is a category of benefits that doesn't appear to have been considered in the paper.
http://brokensymmetry.typepad.com/broken_symmetry/2008/02/patents-as-inta.html
Posted by: Michael Martin at Apr 11, 2008 1:37:27 PM
Sounds like Rex Rhino is on to something, otherwise why wouldn't the satellite owner direct the maneuver from outside the country when the satellite is not over the United States? U.S. Patents only cover making, using, or selling the invention within the United States.
Posted by: Larry at Apr 11, 2008 2:09:52 PM
@ Rex.
that may be true, but it is totally within the rights of their insurer to negotiate a clause in the contract to exclude this sort of thing. This sort of insurance is very complex and very comprehensive--it probably covers something exactly like this. Presumably it is worth it to the spacecraft owner to have this option in their insurance. You might also think of the net benefit of litigating the patent dispute with Boeing versus the insurance payout. If the latter is higher, the company would be mad to fight it.
Also, since this was technically a failure of the launch provider to put the satellite into orbit, it doesn't strike me as odd that the insurer would pay for it. Launch failures are relatively well defined and not (usually) the fault of the customer--perfect opportunities for insurance.
Posted by: Adam Hyland at Apr 11, 2008 2:17:54 PM
Larry,
Have you read the patent? I imagine Boeing thought of this angle when drafting it, so it is likely the relevant steps take place on the ground.
Posted by: Cliff at Apr 11, 2008 3:59:01 PM
Instead of brining it down, the insurer can pay Boeing a license fee for this patent up to the value of the satellite. Boeing gets license revenue, and since zooming around the moon is non-rival, doesn't lose anything either. Everybody wins. The patent is wacky though.
Posted by: Aaron Schiff at Apr 11, 2008 8:59:16 PM
So, Boeing thought they hung the moon?
I thought patenting business processes were pretty questionable. This is way beyond.
Shouldn't patents protect the huge sunk cost investments in R&D that, once developed, can easily be copied by free riders?
I don't think a common sense intention for them is to prohibit long distant future no-brainers.
Posted by: Andrew at Apr 12, 2008 4:01:55 AM
Of course, I need my hand slapped for discussing common sense intentions and laws in the same sentence. It's the incentives of the decision-makers that count.
Hey Alex, I ready your abstract and my gut reaction (4:01:55) was almost verbatim with your premise. Do you think to some extent these ideas might just be ingrained in the worldview or the personality? I mean I couldn't write a paper on it, but our premise was the same from the get-go and I don't often hear people say things quite like that.
Posted by: Andrew at Apr 12, 2008 4:20:08 AM
I suspect that the Boeing people filed this patent application on April 1, and were as surprised as anyone when it was granted.
To fool this to the top of my inadquate legal bent:
- If Boeing unreasonably declined to grant a licence, are they not vulnerable to a claim for damages from any one predjudiced by the falling satellite?
- What quantum of damages would Boeing seek for patent breach? (Probably best expressed in Canadian dollars - known as "loonies".)
- Is not Arthur C. Clarke's original article on the possibility of artificial satellites conclusive prior art? I think I remeber (I have not read it for 50 years)that it refers to the need to allow for lunar gravity when positioning satellites.
- Why does the insurance company involved not tell the satellite owner to go ahead with the technique using lunar gravity, giving them an indemnity agains any suit by Boeing? They could then prempt Boeing by going to them and offering one loonie in concept of damages. If Boeing then sued, they would be liable for the insurance company's legal costs if the Court were to take the view that there was a breach but it did not damage Boeing. I cannot see Boeing's general counsel authorising suing in those cicumstances.
Posted by: David Heigham at Apr 12, 2008 11:10:28 AM
It's often easy to patent a new scientific discovery. In this case, without having read the patent I bet the basic claim looks something like this:
An apparatus for altering an orbit including (1) a rocket-powered craft, in an earth orbit influenced by lunar gravity (in the specific way(s) discovered), such that (description resulting trajectory).
This kind of patent has *not* been overturned. The Supreme Court may decide this issue in the near future, but for now the Federal Circuit allows it.
Posted by: nick at Apr 12, 2008 5:16:32 PM
Incidentally, the same technique was used to legalize the patenting of software, even though algorithms as mathematics cannot be patented. Claims came to be drafted as follows:
An aparatus consisting of (1) a computer (or a CPU, or a memory) running (or containing) [description of algorithm].
The trick is that one combines very general prior art (e.g. a computer or spacecraft) that would constitute one of the few or sole practical ways to take advantage of the new and otherwise unpatentable algorithm or scientific discovery, with the new algorithm or discovery. Modern U.S. courts deem this combination to be both novel and patentable subject matter, even though the algorithm or discovery by itself is not patentable subject matter.
Technically, according to modern U.S. courts, the *algorithm* has not been patented because you can still perform it with pen and paper. And here the *discovery* of neat ways to use lunar gravity has technically not been patented, only the use of such a discovery on a spacecraft.
I describe this trick in more detail for software patents, and how this trick used to be prevented but no longer is, here.
The Supreme Court almost clarified this area of law in 2006, but then punted. So the liberal Federal Circuit law generally allowing such patents is still considered the law.
Whether the discovery about lunar gravity and orbits in question here was made by the patentees, or was novel or non-obvious (and thus, under modern doctrine, the claim as a whole) I have not investigated, and in any case none of what I have posted constitutes legal advice.
Posted by: nick at Apr 12, 2008 5:41:53 PM
