Patent protection in space - Part 1: What are the rules regarding innovation in space?
Space has long since ceased to be the exclusive domain of State space agencies. With the emergence of private space companies, orbital research facilities and even space mining projects, orbit is becoming increasingly important in strategic, economic and technological terms. This expansion is giving rise to new forms of intellectual creation, whether through robot-assisted production processes in zero gravity, biotechnological research under extraterrestrial conditions or additive manufacturing in orbital laboratories. This is precisely why the issue of intellectual property protection is more pressing than ever.
Patent protection in space is becoming increasingly important for space tech
Patents are a key tool for protecting innovation in the space sector. They ensure that research findings are legally protected, safeguard investment in development projects and create reliable incentives for the continuation and intensification of technological excellence.
- Investment in space start-ups: According to Space Capital, more than USD 280 billion has been invested in space start-ups since 2014. Investment in space start-ups continues to show strong growth in 2026.
- Space technology market size: Estimates of the global space technology market size currently stand at around USD 600 billion; by 2030, this is expected to rise to USD 769.7 billion, corresponding to an annual growth rate between 2025 and 2030 of 9.3 %. At the same time, the number of active satellites in Earth's orbit is growing steadily and had already reached around 11,700 by May 2025. Large satellite constellations operated by private providers, foremost among them SpaceX with over 7,400 satellites, are driving this growth in particular.
- Patent activity in space transportation: A WIPO report from 2025 shows a significant increase in patent activity in the field of space transport technologies since 2000. Between 2011 and 2023, the number of published patent families rose from around 1,400 to nearly 9,000, corresponding to an annual growth rate of around 15 %. In total, over 67,000 patent families have been identified in this field, with around 50,000 considered active. In the USA, the number of patent applications in the field of space technology increased by 144 % between 2003 and 2023, which is four times the overall increase in all patent applications. At the same time, Asian countries such as China and India are becoming increasingly important: China has overtaken the US in terms of annual patent applications and remains the leader in the number of published patent families.
- Innovation examples and commercialisation: This trend is also evident in Germany. According to estimates, over 100 start-ups in Germany alone are already developing innovative solutions, including launch vehicles, microsatellites and Earth observation services. Rheinmetall and ICEYE, through their joint venture "Rheinmetall ICEYE Space Solutions GmbH" announced for 2026, are working together with the NewSpace companies Reflex Aerospace, OroraTech, ConstellR and LiveEO to establish space-based reconnaissance capabilities for Germany. The aim is to establish an open, integrated ISR (Intelligence, Surveillance and Reconnaissance) architecture that links satellite data, AI-supported analysis and cross-domain decision support, thereby strengthening the strategic autonomy of Germany and Europe in space. In addition, the Franco-German start-up The Exploration Company plans to carry out regular supply flights to the ISS from 2028 onwards using the "Nyx" space capsule. In this context, patents are not merely formal intellectual property rights, but are often a factor in company valuations, financing strategies and negotiating positions vis-à-vis investors, industry partners and contracting authorities.
These figures illustrate the economic and technological dynamism of the sector. At the same time, they raise a fundamental legal question: How can technical know-how be protected in an area that does not belong to a State and is not subject to any traditional territorial jurisdiction?
Does patent law apply in space?
The legal basis for the use of space is the 1967 Outer Space Treaty (OST), which has now been ratified by more than 110 States. Articles I and II OST stipulate that outer space, including the moon and other celestial bodies, will be used for the benefit and in the interests of all countries, and will not be subject to national appropriation by claim of sovereignty, by means of use or occupation. Outer space is therefore often described as the common heritage of mankind ("res communis omnium") – a stateless area that is in many respects comparable to the high seas.
However, this does not mean that no law whatsoever applies in space. Nor does it mean that national legal systems automatically cease to apply there entirely. Rather, space law establishes a framework under international law for use, responsibility, registration and jurisdiction. However, it does not replace an independent international patent system.
German patent law, like all national patent systems, follows the principle of territoriality: Patents generally take effect only within the State's territorial jurisdiction. This jurisdiction effectively ends at the boundary of national airspace, which, under international law, is approximately 100 kilometres above the Earth's surface (the "Kármán line"). The decisive question is therefore not whether patent protection automatically ends "above 100 kilometres", but rather on the basis of which legal connecting factors patent-related acts in space can be attributed to national law at all.
Patent protection in space: why registered spacecraft are crucial
Article VIII OST forms a key link between terrestrial law and extraterrestrial reality. According to this provision, the State on whose national registry an object launched into space is carried will retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body.
This continuing exercise of State jurisdiction forms the basis under international law for the extraterritorial application of national law – in particular patent law – to spacecraft and space facilities located in space and registered in Germany. This attribution is often described as a form of quasi-territoriality. The term is helpful, but should not be misunderstood. Article VIII OST does not make a spacecraft part of a State's territory in the strict sense. Rather, it establishes a robust basis under international law for attributing acts carried out on board a spacecraft in outer space to a specific State and for regulating them under that State's law. The parallel with the flag state principle on the high seas is therefore clear, but it is not completely identical. This creates a direct link to German patent law, even though the actual location of the act is extraterrestrial.
How far does patent protection extend in space?
This fiction of extraterritoriality gives rise to several key consequences:
- Place of invention: New inventions created on board a spacecraft registered in Germany may be deemed to have been developed within German territory. This is particularly significant with regard to rights in inventions (section 6 German Patent Act (PatG)) and for employees' inventions (sections 1 ff. German Employee Inventions Act (ArbNErfG)). The legal place of invention influences, for example, the obligation to disclose the invention to the employer or to file a patent application with effect in Germany.
- Use of patented technologies: If a patent-protected invention is used on board a spacecraft registered in Germany, such use is therefore to be treated as use within Germany. Accordingly, any licence obligations, claims for injunctive relief or compensation claims against unauthorised users may also be asserted in relation to activities in orbit provided that they fall within the geographical scope of this quasi-territory. However, actual enforcement generally takes place on Earth – for example, through claims against operators, manufacturers, launch service providers, ground station operators, licence holders or marketing companies. Whilst orbit is therefore legally relevant, the enforceable leverage usually lies in the Earth-based interfaces.
This is precisely why a perspective narrowed down to orbit alone comes up short. Space technologies are developed, tested, produced, assembled, launched, controlled and marketed – and all these processes typically have a clear territorial dimension. Even if subsequent use takes place in space, the manufacture, offering for sale, supply or placing on the market of protected components on Earth may already constitute an act of infringement. In addition, there are contractual instruments such as licence agreements, non-disclosure agreements, technology transfer clauses, export control mechanisms and IP provisions in cooperation agreements. In multinational space projects, these mechanisms are often at least as important as the dogmatic question of whether and how a patent takes direct effect "in space".
Despite this fiction of extraterritoriality, which is underpinned by international law, it must be borne in mind that the legal obligation established by Article VIII OST is not without limits:
- It does not extend to outer space as such, but applies exclusively to the registered spacecraft and associated objects (e.g. parts of space stations).
- It is binding only on the State of registration and its legal entities – but not directly on third countries or their actors using other spacecraft.
- Lack of executive structures: A patent infringement on board a spacecraft registered in Germany may constitute a patent infringement within the scope of German patent law. However, there are no dedicated police or judicial enforcement mechanisms in space, meaning that the practical enforcement of such claims generally depends on measures taken on Earth.
Conclusion: Patent protection in space remains legally complex
Orbit is increasingly becoming a laboratory for global innovation, yet the legal framework remains fragmented and inadequate. The Outer Space Treaty rules out State sovereignty over space, but, through the registration of spacecraft, provides important points of reference for jurisdiction and control. Anyone discussing patent protection in space should therefore assume neither that it is a legal vacuum nor that it is simply a territorial extension of national patent law systems. A more accurate description is that patent protection in space is legally possible, but in practice can only be reliably ensured through a combination of attribution under international law, the application of national law and the consistent safeguarding of value-added stages on Earth.
Since space technologies inevitably have to be launched into orbit from terrestrial launch facilities, and given that only a limited number of spaceports therefore come into consideration, this provides a significant point of reference under patent law. Through targeted applications for intellectual property rights in the relevant launch States, the manufacturing, assembly and launch process can be legally documented and secured by means of national enforcement, although access to these rights on Earth is generally more enforceable and effective than in space, where regulation under international law remains fragmented.
National laws and the Outer Space Treaty provide initial points of reference, but cannot adequately address the reality of multinational research and production projects. As things stand, the EU Space Act does not contain any specific provisions on patent protection in space either and continues to leave the clarification of these issues to national laws and international agreements.
To find out why an international legal framework for intellectual property in space is essential, and what specific solutions are being discussed, read the second part of this article in our "CMS Space Law" series.
