Key Takeaways: Companies relying on the U.S. Space Act for patent protection of inventions in orbit should be aware of exceptions to that Act that prevent such protection in certain circumstances. One scenario is where U.S. payloads fly aboard spacecraft owned and registered by non-U.S. parties, which could implicate one of the Space Act’s exceptions.
Some patentable inventions are practiced in space. For example, on September 1, 2026, Helogen Corporation announced plans for two in-orbit manufacturing missions of its HEL-IOSTM biomanufacturing platform this October. The first mission is for Helogen to produce its own biopolymers for orthopedic applications such as rotator cuff and meniscus repair. The second mission is a partnership with LambdaVision to produce proteins for an artificial retina, and is reported to be flying aboard a spacecraft operated by D-Orbit, an Italian company.
The rise of in-space manufacturing and other patentable methods raise a threshold question for those patent owners: how to capture infringement if a patented process is performed in orbit? U.S. patents are territorial, and 35 U.S.C. § 271 reaches only acts committed within the United States. A process performed entirely aboard a spacecraft in orbit may not qualify.
Congress addressed that problem with the Patents in Space Act. As discussed previously on this blog, under 35 U.S.C. § 105, any making, using, or selling of an invention in outer space “on a space object or component thereof under the jurisdiction or control of the United States” is considered as occurring within the United States for purposes of infringement. This is subject to exceptions for a space object or component thereof that is (1) provided for by an international agreement or (2) carried on the registry of a foreign state.
These exceptions may be implicated for payloads hosted by a third party, which is becoming a common way to reach orbit. A hosted payload flies aboard a spacecraft that the payload owner does not own or operate. The arrangement is attractive for early-stage companies to get a manufacturing platform into orbit without building its own spacecraft. But the host spacecraft might be registered with a country other than the United States, even when the payload itself is American owned and operated.
For example, a spacecraft operated by an Italian company such as D-Orbit may be carried on the registry of a European state. If the host spacecraft falls under the second exception of § 105, is the hosted payload itself regarded as “a space object or component thereof under the jurisdiction or control of the United States”?
This aspect of the Space Act matters more for some patent claims than for others. A claim to the manufactured product may be unaffected, since if the product returns to the U.S., the normal territorial considerations would apply. A claim to the manufacturing process is different. If the process is performed entirely in orbit, and the Space Act does not apply to the spacecraft where it is performed, the territorial problem may be an issue.
Therefore, patent applicants and owners should weigh these considerations when developing their patent portfolio strategy for space technology. One strategy could be to file patent applications in all countries where spacecrafts might be registered, but the costs for doing so may be impractical. Another consideration is claim drafting strategy for capturing infringement on Earth, as further described in another recent post on the Knobbe Aerospace Blog, related to in-space repair and orbital assembly.
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