Lift-off with space elevators – an IP perspective

Article | December 30, 2022

Lift-off with space elevators – an IP perspective

Lift-off with space elevators – an IP perspective

Since we first sent objects into space, rockets have been used for the transportation of space objects. These first rockets were complex, costly, single-use, and had high failure rates. At the time, these issues were overlooked by space agencies in the race to get into space.

We’ve come a long way since these initial rockets, with the reliability and cost of launch improving massively over the past decades. As an example, the Space Shuttle had a launch cost of about $20,000/kg of payload. This reduced to about $7,000/kg for the Soyuz-FG rocket, and the new reusable Falcon 9 rocket by SpaceX has a launch cost of about $2,000/kg of payload. This reduction in the cost of launch has enabled the dramatic expansion of commercial space activities, such as for small objects like CubeSats. This explosion is only set to continue.

The sustained reduction in costs of launching has the potential to shift launch limitations from cost to payload volumes. However, there is a size limit to the objects that can be launched into space: a space object needs to fit in a rocket payload, which is limited by a size of the rocket. Unfortunately, a rocket can only be so large – increasing a size (i.e. weight) of a rocket increases the amount of fuel required for take-off which increases its weight, requiring more fuel, and so on. This means there tends to be a diminishing return for building larger and larger rockets. The result of this is that large space objects, such as the International Space Station, need to be built from many small modular components over a period of time using several launches.

Building an economy in space will require building space infrastructure. If this infrastructure is to be built from modular components launched from earth, this approach will be protracted. Even if these components are built in space, the infrastructure to establish space manufacturing will still take considerable time to build.

A potential alternative to the use of rockets is a space elevator. As its name suggests, a space elevator is simply an elevator extending from earth into space and could be used to lift objects into space. Modern concepts of space elevators envision an elevator having a cable attached at one end to the Earth’s surface at an “earth port” and to a counterweight at the other end about 36,000 kilometres above earth in geostationary orbit at a “space port”, with carriages (also termed “climbers”) moving along with cable between the Earth port and space port.

A space elevator is not a new idea, with Russian rocket scientist Konstantin Tsiolkovsky outlined the concept in 1895 after viewing the Eiffel Tower extending towards the sky. Unfortunately, a space elevator is still a theoretic device. The space elevator cable requires lightweight high tensile materials, such as carbon nanotubes, that are in an early stage of development and are yet to be manufactured at the scales required to form the cable. Despite this, there is commercial interest in the construction of a space elevator, such as Japanese construction giant Obayashi Corporation’s plans to build a space elevator by 2050.

Despite the technical challenges, space elevators are touted as a future transportation system that will dramatically reduce the cost of sending objects into space from the thousands of dollars per kilogram to a few dollars or less per kilogram. Such a step-change in cost would fundamentally change the way we access space.

Even though a space elevator is still a theoretical transport system, it provides a good example to explore the issues at the intersection of space law and IP laws. (For a brief introduction to the interaction of IP laws and space law, please read our overview article.)

The jurisdiction which governs a space object, and therefore which IP laws apply to the space object, is based on which jurisdiction the space object is registered in for launching purposes. This jurisdiction is based on the 1975 Convention on the Registration of Objects Launched into Outer Space (the 1975 Convention).

A space elevator provides a non-rocket space launch to send an object into space. There is some debate whether a space elevator “launches” an object into space, and its effect on the registration of an object under the 1975 Convention, given the 1975 Convention requires a “launch”. If the purpose of a “launch” is to send an object into space independent of the launch type, and the 1975 Convention is interpreted in this way, a space elevator would provide a “launching” service as a means to transport an object into space. For our purposes, let’s assume a space elevator does “launch” an object into space.

The required capital, complexity, and time required to build a space elevator, coupled with geographic restrictions on where a space elevator can operate (i.e. near the equator), means that it is unlikely that more than a handful of space elevators would ever be built. If the Earth port were built in international waters, the jurisdiction of the Earth port, and thus the space elevator, would be governed by the flag state jurisdiction under maritime law.  

The question then becomes (i) which state launched or procured the launching of the space object or (ii) which state from whose territory or facility was a space object launched when determining the launch state for the 1975 Convention. The answer to (i) is more of a commercial decision as outlined in our overview article, and the answer to (ii) is simply the jurisdiction of the Earth port.

However, what happens if the carriages or climbers are considered a space object that is registered under the 1975 Convention differently to the Earth port? Similarly, what if the space port is registered in a jurisdiction that is different from the Earth port or the carriages? This would change the answers to (i) and (ii).

From an IP perspective, a space elevator would concentrate particular “launching” services to potentially only a few jurisdictions, which has the effect of making the space elevator a transport hub similar to large shipping ports on Earth. This means that patenting strategies should look to seek protection in the jurisdiction of these transport hubs. For example, if a particular technology can only be utilised in space using a space elevator, a patent may include a claim to use of a space elevator to transport the technology to or from space.

It remains to be seen whether a space elevator will ever get off the ground, but at the current rate of space commercialisation, no one type of technology should be ruled out.


Stefan Paterson

Principal | Patent & Trade Mark Attorney