These Are Not the Droids You’re Looking For (They’re Registered in Panama)

MBHB Summer Associate Walter DeGroft co-authored this article.

Space exploration and development are back in the public consciousness, driven partly by SpaceX’s initial public offering (IPO) raising $85.7[1] billion and deals to rent computer capacity to Google for $920 million per month and to Anthropic for $1.25 billion per month.[2] While these deals rely on earthbound superclusters like Colossus, the true frontier is rapidly shifting off-planet. With SpaceX filing FCC plans for a constellation of up to one million “AI1” orbital data center satellites, and Google partnering with Planet Labs on “Project Suncatcher” space-based data centers, the natural question is — at least for patent attorneys — whether operations in space can infringe a patent issued by the United States Patent and Trademark Office (USPTO).

The grant of a United States (U.S.) patent generally does not protect against infringing activities which occur in another country. Patent law is not generally extraterritorial.[3] It is also, at least presumptively, not extraterrestrial.[4] The United Nations (U.N.) Conventions of Laws of the Sea, declares international waters as res communis, meaning it belongs to all of humankind and are exempt from national claims of sovereignty.[5] The U.N. “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies” applies this same principle to space, meaning, space is for everyone.[6] Realizing the potential for abuse, the U.N. created the 1975 Registration Convention requiring any country, to register any object they put in space.[7] This registration grants the state of registry full jurisdiction and control over that object and personnel while in outer space.[8] Thus, if SpaceX registers their orbital data center satellites in the U.S., the U.S. has jurisdiction over those space objects.

In 1990, the U.S. enacted the Patents in Space Act of 1990, which extended space jurisdiction to patent infringement.[9] Specifically, 35 U.S.C. § 105(a) states: “[a]ny invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States.” Thus, if someone performs all steps of your patented method claim on a U.S. registered space object, they have infringed your patent. It is also infringement when a portion of the method occurs in space, on a U.S. registered object, and a portion occurs on U.S. soil.

Conversely, if one or more steps of your method claim are performed on a space object that is not registered in the U.S., there is no infringement. 35 U.S.C. § 105(a) explicitly excludes actions taken with “respect to any space object or component thereof that is carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space.”[10] This explicit exception in 35 U.S.C. § 105 is ripe for exploitation in a similar manner to maritime Flags of Convenience practice, which entails strategically registering a vessel under a foreign state’s flag to place the vessel outside the reach of a nation’s laws. For example, if a U.S. company launches and registers their satellites in Luxembourg, they do not violate 35 U.S.C. § 271 when performing all steps of your patented method claim in space.

U.S. courts may have inadvertently solved the problem of “extraterrestrial Flags of Convenience.”[11] Decca Ltd. v. United States created a three-factor framework (ownership, control, and beneficial use) for determining whether a system with foreign-located components was “used” within the U.S. The Federal Circuit later distilled the framework into a two-prong test in NTP, Inc. v. Research in Motion, Ltd. asking whether: (1) the infringer exercises control of the system from the U.S., and (2) if the beneficial use of the system is obtained in the U.S.[12] In NTP, the Federal Circuit held U.S. mobile users infringed NTP’s system claims by controlling the patented system and obtaining beneficial use on U.S. soil, even though a relay server sat in Canada.[13] However, the court held that there was no infringement of the method claims because not every step of the method claims occurred on U.S. soil.[14] Under NTP, a system claim may still be infringed on a foreign satellite, while a method claim would not. Practitioners should note, however, that this fallback is legally untested in orbit.

For patent practitioners, navigating these extraterrestrial challenges means that, for inventions that could conceivably be used or sold in space, patent drafting and prosecution should be adapted to capture infringement in space. Here are three tips to help protect your patent rights from a possible extraterrestrial infringer.

1. Focus Claims on Terrestrial Activity and Earth-Based Infringement for Methods and Apparatus Claims: Practitioners should draft method claims directed to the steps executed by terrestrial ground stations, such as receiving, requesting, and utilizing the downlinked data. Because space assets must continuously interact with ground-based networks to downlink processed data, claiming the terrestrial receipt processes effectively places the infringer into U.S. jurisdiction. For apparatus claims, practitioners should focus on claiming the physical components of the device. If the device is destined to be assembled in space on a foreign-registered object, practitioners can weaponize 35 U.S.C. § 271(f), which makes it an act of infringement to supply uncombined components of a patented invention from the U.S. to be combined abroad. By focusing on component-level apparatus claims, you can catch an infringer on terrestrial soil the moment they ship the parts to the launchpad, completely bypassing the foreign-registry loophole.

2. Leverage the Decca/NTP Framework for System Claims: If an orbital infringer works around the statutory requirements of 35 U.S.C. § 105 via a foreign registry, a U.S. court may still assert jurisdiction by applying the Decca/NTP framework mentioned above. Restating the rule, a system claim is infringed where control of the system and beneficial use of the system both occur within the U.S.[15] Practitioners should draft claims and specifications to highlight the domestic control of the systems and domestic benefits to anchor the system to this framework. Furthermore, because orbital AI data centers may process models autonomously in space, practitioners must ensure their system claims do not define “control” solely through satellite-side administration. Instead, frame “control” around terrestrial user actions, such as initiating an Application Program Interface query or injecting custom prompts from a U.S. terminal, ensuring that the legal locus of “control” remains firmly on the ground.

3. Build a Multinational Patent Portfolio: Section 105 makes the U.S. unique—no other space-faring nation has codified a comparable patent-in-space regime. However, because most other space-faring nations lack a direct equivalent to 35 U.S.C. § 105, holding foreign patents will not magically extend your reach into orbit. Instead, the goal of a multinational strategy is to squeeze your competitor’s terrestrial supply chain. By securing patents in jurisdictions with advanced space programs (like Europe, China, Japan, and India) you prevent competitors from manufacturing hardware, operating ground stations, or downlinking data in those jurisdictions. This closes off the terrestrial safe havens that make orbital Flags of Convenience commercially viable in the first place.

[1] Lora Kolodny & Chris Eudaily, SpaceX IPO Raises Total of $85.7 Billion as Underwriters Exercise ‘Greenshoe’ Overallotment Option, CNBC (June 15, 2026, 10:07 AM), https://www.cnbc.com/2026/06/15/spacex-ipo-spcx-greenshoe-overallotment.html

[2] Sean O’Kane, Google Will Pay SpaceX $920M per Month for Compute, TechCrunch (June 5, 2026), https://techcrunch.com/2026/06/05/google-will-pay-spacex-920m-per-month-for-compute/

[3] Microsoft Corp. v. AT&T Corp., 127 S. Ct. 1746, 1758 (2007) (“The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law”).

[4] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies arts. I–II, opened for signature Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [Hereinafter Outer Space Treaty].

[5] United Nations Convention on the Law of the Sea art. 87, 89, Dec. 10, 1982, 1833 U.N.T.S. 3.

[6] Convention on Registration of Objects Launched into Outer Space art. II, opened for signature Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [Hereinafter Registration Convention];

[7] Registration Convention art. II; Outer Space Treaty, art. VIII.

[8] Registration Convention, art. II; Outer Space Treaty, art. VIII.

[9] Patents in Space Act, H.R. 2946, 101st Cong. § 2 (1989). (Codified at 35 U.S.C. § 105).

[10] 35 U.S.C. § 105(a)

[11] Decca Ltd. v. United States, 544 F.2d 1070, 1083 (Ct. Cl. 1976).

[12] NTP, Inc. v. Research in Motion, Ltd., 418 F.3d 1282, 1316-17 (Fed. Cir. 2005).

[13] Id.

[14] Id. at 1318.

[15] NTP, Inc., 418 F.3d 1282, 1316-17 (Fed. Cir. 2005).