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Friday 25 April 2014

Commentary

What The Heck Is A ‘Space Launch Vehicle’?

by andrew rush

Way back on July 15, 2009, Blue Origin filed a provisional utility patent application that would ultimately result in a patent application describing techniques related to recovering space launch vehicles using “landing structure[s] in a body of water.” A lot has been written about this patent application. Many people have decried this application as overbroad and point out that it will likely be narrowed significantly before any patent ultimately issues from it.

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For full image Click to Enlarge

 
US Patent Application No. 12/815,306.
Title: Sea Landing of Space Launch Vehicles and Associated Systems and Methods.
Inventors: Jeffrey P. Bezos, Gary Lai, and Sean R. Findlay.
Assignee: Blue Origin, LLC.

I think this patent application is deeply flawed and unnecessarily makes Blue Origin look bad to the broader aerospace community. Let me tell you why.

The Technology Area

This patent application is directed toward recovering space launch vehicles on a body of water, like at sea. It also addresses bringing those vehicles back to a shore-based launch site and/or refurbishing the vehicle in transit. Lastly, the application describes how one could maintain a constant landing zone at sea (e.g. have two barges and ensure that one is always in the landing zone while the other transports a recovered vehicle to its destination).  What is a space launch vehicle? More on that in the final analysis!

Specifics of the Application (remember, Applications are not issued patents!)

This application broadly defines the technology area and then lays claim to essentially the whole if in with Claim 1:

1. A method for operating a space launch vehicle, the method comprising:
launching the space launch vehicle from earth;
positioning a landing structure in a body of water; and
landing the space launch vehicle on the landing structure in the body of water.

In other claims, the application discloses a few different ways to place a craft in a tail-first orientation for landing. These methods include attitude thrusters and aerodynamic control surfaces. In other portions of the application, complete or partial use of a parachute to guide descent is discussed, al la NASA’s MSL and Armadillo Aerospace’s STIG-A. In terms of the description of parachutes, it is disappointing that no mention of steerable vs non-steerable parachutes is made, nor is there much discussion on implementation of parachute assisted landings, which one could argue fails to meet the requirements for patentability with regard to parachute guided landings on a structure at sea.

My Analysis

As a patent agent, it is my job to come up with broad ways to describe technologies in a patent in order to avoid my client’s technologies being “designed around.” As a simple illustration, image you build a novel device using gold wire. Now, gold wire works really well compared to other types of wire because gold is a better conductor than other metals, like copper. If I write you up a patent application for your novel, gold wire-using device, I could choose to describe it only in terms of gold wire. Infringement generally only occurs if an allegedly infringing device has every element listed in the claims of a patent. It would be pretty easy for a competitor to avoid infringing a patent that describes your novel device if that patent only talks about gold wire. They could simply use copper wire and avoid infringing! Therefore, as a patent professional I, and others like me, describe multiple alternatives and use broadening, more general terms, in order to try and prevent such obvious design arounds. For example, in the novel, gold wire-using device example, I might say simply “wire” or “current carrier” or “signal carrier” depending on the use of the wire.

On the surface, The Blue Origin sea landing patent application seems to take the approach I would take. That is, the application describes, in broad terms, landing a vehicle on a structure at sea. However, the key to securing a patent is disclosing how you did it/can do it, not that you had a nebulous idea (“a patent is not a hunting license”). For example, many people were trying to achieve powered flight in the early 1900s. A lot of people had the idea! But none of them, except for the Wright Brothers, got a patent covering powered flight because only the Wright Brothers actually came up with a functioning way to pull it off. This is why this sea landing patent app is, in my opinion, flawed. Plenty of people have come up with this idea, one might even call it obvious in light of these floating city things called aircraft carriers and high flying VTOL aircraft such as the 1970s era Harrier! The application doesn’t really go into any sort of detail about addressing some of the unique problems of landing on a floating surface, making it seem a lot more like a hunting license, than a well crafted patent application.

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Is this fighter/jet anti-satellite missile combo a “space launch vehicle”? – Image credit: Paul E. Reynolds/USAF

The biggest problem with this app is the use of the term “space launch vehicle.” What does that term mean? Does the whole vehicle have to go to space? From looking at the drawings in that application, apparently not! But if only a portion of the vehicle has to go to space, it appears that “space launch vehicle” would include fighter jet capable of taking off on land and landing on an aircraft carrier, such as an F-15 or and F-18, carrying an anti-satellite missile. The US military demonstrated these technologies in the 1980s. This would anticipate Blue Origin’s patent application, and would need to be excluded in order to get any issued patent based on their application.

And what is space? Where does space begin? Some say the Karman line, but the FAA allows individuals to purchase astronaut wings if they have gone above 50 miles. The pilots of the X-15 were given astronaut wings because they went over 50 miles in altitude; the Air Force considered this “space” in the 1960s.

Does a “space launch vehicle” have to deliver a payload to orbit? Or would a suborbital vehicle suffice?

35 USC 112 requires claims to be definite and specific, but the term “space launch vehicle” is not, therefore claims that use that term are faulty. The Supreme Court (remember, patent law is federal, backed up by the Constitution) gives inventors a powerful tool to avoid such ambiguity, the lexicographer rule. An inventor “is free to be his or her own lexicographer” and define their own terms “if the written description clearly redefines those terms.” Laying out the precise definition of a term will in many cases avoid ambiguity, because that definition will be used to interpret the patent.See Markman v. Westview Instruments, Inc., 52 F.3d 967, 980 (Fed. Cir. 1995) aff’d, 517 U.S. 370 (1996). In order to avoid this “space launch vehicle” problem, a definition of that term should have been included in the application.

Many people seem to think that this application clearly indicates that Jeff Bezos and Blue Origin intend to be bad actors in the NewSpace field, using the patent system to push around other emerging space companies. I hope that’s not true. Rather, I think the overbroad nature of this application is a result of choosing patent attorneys unfamiliar with the state of the art in aerospace.

My recommendation to Blue Origin (and all other aerospace companies)- make sure your patent professional is familiar with the field, or takes the time to become familiar with the field, and READ the application before it is filed and give feedback to your guy. The application should be read by the actual inventor(s), not just in house counsel because technical accuracy is paramount in a patent application.

Patent agent Andrew Rush publishes the blog IPinSpace, “where the vastness of space, law, and intellectual property meet”.

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