WASHINGTON — A patent board offered SpaceX a split decision on its protest of a reusable launch vehicle patent held by Blue Origin, approving a review of some, but not all, claims of that patent.
In separate decisions issued March 3, the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board approved a SpaceX petition for an “inter partes” review of 13 of the 15 claims in a patent governing the landing of reusable launch vehicle stages on ships or other platforms in bodies of water.
“On the current record, SpaceX has demonstrated a reasonable likelihood of prevailing on the asserted ground of anticipation” of the first 13 claims of the patent, the board concluded in its ruling. “As such, we authorize institution of an inter partes review of claims 1–13 of the… patent.”
The board, though, denied SpaceX’s petition for a review of the final two claims of Blue Origin’s patent, which cover the powered landing of part or all of a launch vehicle on a “sea going platform” and then reusing that vehicle. The board concluded that Blue Origin’s description of turning off and then reigniting the booster’s rocket engines was too vague for the board to decide if SpaceX had a “reasonable likelihood” of winning a review on those two claims.
While initial reaction to the board’s decision focused on its rejection of SpaceX’s petition, one attorney called the rulings a “big day” for SpaceX. “This is a partial win for SpaceX,” said Andrew Rush, a Jacksonville, Florida-based lawyer who studies intellectual property law as applied to space, in a series of tweets about the board’s decision March 4.
In a March 5 interview, Rush said that the board’s conclusion that the language in two of the claims is “indefinite” could allow SpaceX to challenge the patent in federal court, or provide a strong defense should Blue Origin sue SpaceX for patent infringement. Claims that use indefinite language are considered invalid, he said.
“They lost the battle,” Rush said of SpaceX and its denied petition, “but they were told they would win the war.”
At the heart of the dispute is U.S. Patent 8,678,321, titled, “Sea landing of space launch vehicles and associated systems and methods” and awarded to Blue Origin in March 2014. The patent covers methods of landing and recovering portions of launch vehicles on platforms located at sea or other bodies of water. Blue Origin filed the patent application in June 2010.
While Blue Origin has not indicated if or when it would use such a recovery system for its vehicles, SpaceX is already using this approach as it develops a reusable version of its Falcon 9 rocket.
In January, a Falcon 9 first stage crashed on the deck of SpaceX’s “autonomous spaceport drone ship” after a launch from Cape Canaveral. The stage ran out of hydraulic fluid used to manipulate fins on the stage, preventing a controlled landing on the ship’s deck.
SpaceX planned to make another landing attempt during a February launch, also from Cape Canaveral, but heavy seas in the Atlantic Ocean forced the company to withdraw the ship from the landing site. SpaceX later said the stage touched down on the ocean surface within ten meters of its target. SpaceX is expected to make another landing attempt on its next launch of a space station cargo resupply mission, scheduled for April.
SpaceX filed a petition for inter partes review with the U.S. Patent and Trademark Office in August 2014, citing prior art that it argued invalidated Blue Origin’s patent. That included 1998 papers by Japanese inventor Yoshiyuki Ishijima, published by the American Institute of Aeronautics and Astronautics, which show a process for landing a stage at sea in a manner similar to what Blue Origin described in its patent.
Under the current inter partes review system for patents, established by the America Invents Act of 2011, the Patent Trial and Appeal Board has 12 months to conclude its review, a clock that started with its March 3 decision to proceed with the review on some of the claims. That review can be extended for six months for “good cause,” according to an explanation of the process published by the Patent and Trademark Office.