Industrial property rights, which also include patents, are subject to the territoriality principle on Earth. This means that a patent generally only has its monopolising effect, namely the right to prohibit, in the state or in the territory of a state community united under patent law in which it has been applied for and granted or registered. Accordingly, an act of patent infringement can only be effectively carried out, i.e. unlawfully, in the place where the respective patent has its legal effect. Patent law thus links to the territory of the legislating state or the legislating community of states to determine its effective territory. The concept of the territory of effect does not refer to a territory in the narrower sense (as a landmass), but in the broader sense (as an area of legal effect). Therefore, the question of patent protection and its enforcement must be examined according to the law of the territory of effect.

Scope of territorial effect

First, it should be examined for German patent law what the concept of the territory of effect covers.

It should be undisputed that German law and thus the German Patent Law is applicable to the territory in the narrower sense, i.e. the area of the Federal Republic of Germany within its political borders (‘domestic territory’). This also includes the islands in the North Sea and the Baltic Sea as well as the German exclaves in Switzerland (Büsingen) and Belgium (sites west of the Belgian Railway Line through the Fagnes - Vennbahntrasse).

In particular with regard to the EU Patent Regulation, which applies to a patent law union of states (‘participating member states’), it is no longer possible to speak of domestic territory as in the German Patent Act. The EU Patent Regulation defines the territory of unitary patent protection in Art. 5 (1) as ‘within the territories of the participating Member States’. In this article, the term ‘territory of effect’ is therefore used to refer to the territory of patent protection, which is not limited to the national territory or to the land mass.

According to the applicable law and legal practice, the German territory and thus the territory of effect of the German Patent Act extends beyond the mainland territory (land mass) within the political borders to

• the coastal sea (3- to 12-mile zone)
• the seabed and the subsoil of the coastal sea
• the space below the earth's surface
• the airspace above the earth's surface and above the coastal sea
• on German ships in foreign waters and on the high seas
• on German flying objects (e.g. aircraft, satellites and other space objects)
• on artificial installations on the continental shelf and on the high seas over which the Federal Republic of Germany exercises jurisdiction,

not, however, to the airspace above the continental shelf outside the territorial sea.

Whether the territory of effect of the German Patent Act also extends to the German research station in the Antarctic, which is free of current national territorial claims and where freedom of scientific research applies, is just mentioned as a further question here.

Exceptions to the territory of effect

Art. 5ter of the Paris Convention (PC) regulates when the use of inventions on board ships, land vehicles or aircraft of a PC member state, which are temporarily or accidentally in another PC member state where the invention is protected by a patent, is not considered an infringement of the rights of the patent holder. The territoriality principle is thus breached by Art. 5ter of the Paris Convention.

Art. 27 of the Convention on International Civil Aviation explicitly regulates the exemption of an aircraft registered in one state from seizure due to patent infringement in another state in whose territory it is temporarily located.

Diplomatic missions in a state, on whose territory the territorial sovereignty of the host state is subject only to functional restrictions, do not constitute exceptions to the territorial effect of the laws of a state, in particular the laws on industrial property rights.

The United Nations Outer Space Treaty, also known as the Magna Carta of space law, stipulates, among other things, that outer space, the moon and all other (extraterrestrial) celestial bodies are free from any state sovereignty.

© 2014 -2025 Dr. Wolfram Schlimme
 

German ships and aircraft are subject to German jurisdiction even if they are not within German borders as they are registered in Germany. The laws applicable to ships and aircraft are therefore linked to the country of registration, i.e. the ‘nationality’ of the ship or aircraft. This link follows the principle of nationality.

While the principle of territoriality links the attribution of jurisdiction to the territory of a state, the principle of nationality links the attribution of jurisdiction to the nationality. This principle of nationality is applied, among other things, to defining the nationality of ships and aircraft, whereby the nationality is determined by the state in whose corresponding register (ship register, aircraft register) the ship or aircraft is entered. Legislative power over a ship or aircraft thus lies with the state of registration.

The Outer Space Treaty provides for the analogous registration of space objects (e.g. spacecraft, space stations, satellites), which is governed by the Outer Space Registration Agreement. This registration is carried out in a respective national space registry. In addition, the registering state reports to the Secretary-General of the United Nations for registration in a central space register administered by the UN Secretariat. The principle of nationality is also considered to apply to space objects. Article VIII of the Outer Space Treaty gives the state of registration ‘jurisdiction and control’ over the space object in question.

Space objects registered in the German space register may therefore be subject to German patent law if an invention is made on board a space object registered in Germany over which Germany has jurisdiction and control, or if a patented invention is realised in or on the specific space object itself.

© 2014 - 2025 Dr. Wolfram Schlimme
 

According to public international law, extraterritorial spaces in which no national or other sovereign law applies are the high seas and the airspace above the high seas, in accordance with the United Nations Convention on the Law of the Sea; Antarctica, in accordance with the Antarctic Treaty; and outer space, in accordance with the Outer Space Treaty. Among these, the Outer Space Treaty and, in principle, the Moon Treaty, can be considered as sources of international space law, although the latter has not entered into force for Germany. The relevant source of international patent law is the Paris Convention. For states that are not party to the Paris Convention, the TRIPS Agreement could also be of significance, but this will not be discussed further here, since its patent law provisions are essentially also contained in the Paris Convention.

Outer Space Treaty (OST)

The ‘Outer Space Treaty’ (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies) of 27 January 1967, to which 116 states (as of 1 January 2025) including the Federal Republic of Germany are parties, sets out in Article I the general principles governing the use of outer space. The first paragraph reads:

‘The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.’

According to the first paragraph of Article I of the OST, not only the exploration but also the use of outer space should be for the benefit and in the interests of all states. The preamble of the Outer Space Treaty emphasises the common interest of all mankind in the exploration and use of outer space for peaceful purposes:

'Recognizing the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes.’

The third recital assumes that the exploration and use of space should be for the benefit of all mankind:

‘Believing that the exploration and use of outer space should be carried on for the benefit of all peoples irrespective of the degree of their economic or scientific development’

The second paragraph of Article I of the OST states:

“Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”

In other words, it establishes the free exploration and utilisation of outer space and free access to all celestial bodies for all states. It therefore seems questionable whether this guarantee of free access to outer space and celestial bodies and the guarantee of free utilisation of outer space, the moon and celestial bodies can be made compatible with industrial property monopolies such as patents.

The Outer Space Treaty then becomes more specific in Article II:

„Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.“

The guarantee of free access for all states and the prohibition of national appropriation by claim of sovereignty over outer space thus clearly and unambiguously exclude the monopolisation of outer space and extraterrestrial celestial bodies by one state over other states. Consequently, none of the signatory states of the Outer Space Treaty, for which it has entered into force, can claim sovereignty in outer space, on the moon or on other celestial bodies. For Germany and for all other signatory states of the Outer Space Treaty in which it has entered into force, this regulation therefore excludes the extension of national legal provisions that are linked to the territory, for example national patent law, to outer space, the moon and other celestial bodies.

The only exception to this is the aforementioned Art. VIII OST, according to which a space object is subject to the sovereignty of the state in which it is registered and where the state exercises ‘jurisdiction and control’ over it. Sentence 1 of Art. VIII WRV reads:

"A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body."

The term ‘space objects’ is more general than the term ‘space vehicles’ and is therefore not limited to vehicles and their parts. The term ‘space objects’ therefore also includes other objects located in space, such as satellites and space stations, and possibly also discarded space debris. However, fixed installations on the moon or on another (extraterrestrial) celestial body, such as habitats, are not likely to be space objects in the sense mentioned, since as fixed installations they require land ownership. Such fixed installations should therefore not be covered by the provisions of Art. VIII OST, as they would probably constitute an unauthorised territorial appropriation within the meaning of Art. II OST.

According to Art. VII OST, the state of registry should therefore exercise ‘jurisdiction and control’ over the space object. However, the Outer Space Treaty leaves open what is to be understood by ‘control’ in Art. VIII. Particularly with regard to space missions carried out by the private sector, the question arises as to how and to what extent the ‘control’ of the non-governmental space object by the State of Registry must take place or be guaranteed so that the State of Registry can effectively extend its sovereign rights to this space object, and which specific State must (be able to) exercise this control as the ‘State of Registry’.

Although the term ‘state of registry’ is defined in Article I (c) of the aforementioned Space Registration Convention ('Convention on Registration of Objects Launched into Outer Space'), this definition refers to the term ‘launching state’, which in turn contains two ambiguous alternative definitions in Article I (a) Space Registration Convention, namely

'(i) A State which launches or procures the launching of a space object;
(ii) A State from whose territory or facility a space object is launched;'

Further international regulations are therefore needed here, in particular to globally harmonise the criteria that determine the conditions for the effective territorial extension of sovereign rights to a space object. A fundamental question in the assessment of patents relating to outer space will always be whether the patent in question is territorially linked to outer space, the moon or an (extraterrestrial) celestial body and thereby effects or can effect a monopolisation of outer space, the moon or the celestial body or parts thereof, in which case such a patent would be in contradiction to the principles of the Outer Space Treaty.

However, the principles of the Outer Space Treaty do as such not exclude the existence of patents in outer space, beyond the exception in Art. VIII OST, as long as such patents are not of national sovereign origin, but would be based on an international space patent law that does not yet exist and would be subordinate to the Outer Space Treaty.

Such an international space patent regime, yet to be created, would make it possible to monopolise new and inventive devices or processes used in outer space, on the moon or on other (extraterrestrial) celestial bodies, without preventing third parties from freely using outer space, the moon and other celestial bodies is not only considered conceivable, but also necessary in order to create an incentive for the development of space technologies and to legally secure the recovery of the necessary high investment costs for a limited period of time.

The vision of creating a standardised patent law system covering patent protection in space and worldwide patent protection on earth has already been outlined in the literature.

Moon Agreement (MA)

The United Nations Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 18 December 1979 (‘Moon Agreement’), to which only 20 states have so far (as of 1 January 2025) effectively signed up, although not the major space nations USA, Russia and China, nor Germany, has not yet gained any significant importance in international space law due to its low level of acceptance.

This Moon Agreement is intended to govern the legal situation of habitats and vehicles on the moon and on other (extraterrestrial) celestial bodies in our solar system, including the associated orbits and trajectories. Art. 9 of the Moon Agreement authorises the establishment of lunar stations over which the establishing states are to have ‘jurisdiction and control’. However, Article 11 of the Moon Agreement stipulates, in the words of Article II of the Outer Space Treaty, that the Moon shall not be subject to national appropriation by any claim of sovereignty, by means of use or occupation, or by any other means, and that the natural resources of the Moon shall be the heritage of all mankind.

Paris Convention (PC)

Article 5ter of the Paris Convention stipulates which use of patented inventions on board ships or aircraft that are only temporarily present in a foreign country is not considered to be an infringement of the patent proprietor's rights. However, the Paris Convention contains no specific provisions for patent protection in extraterritorial areas, nor does the Outer Space Treaty. The Paris Convention also contains no provisions for spacecraft that are only temporarily or accidentally present in a foreign country.

It could be argued that space objects, in particular spacecraft such as space shuttles, which can land like an aircraft and which are registered in a first state (state of registry) and are launched from the territory of another state (launching state) and land in a third state (landing state), are to be regarded as aircraft temporarily present in the launching state or landing state within the meaning of Art. 5ter of the Paris Convention during their stay in the launching state and landing state and during their flight through the respective airspace. Art. 5ter of the Paris Convention could then be applicable by analogy.

This view is supported by the fact that the Paris Convention of 1883, which has been revised several times, was last revised (Stockholm version) in July 1967, at a time when the USA had just completed its Gemini programme and was at the beginning of the Apollo programme. At that time, the use of space shuttles capable of landing in aerodynamic flight and the commercial use of space by non-governmental private sector organisations were still a long way off and, apart from the USA and the Soviet Union, no state was in a position to reach space at that time.

The Paris Convention may contain a regulatory gap here that could be closed by applying Article 5ter of the Paris Convention to spacecraft by analogy. The normative purpose of Art. 5ter Paris Convention can be seen in not hindering international traffic with ships and aircraft by applying national patent laws. This need can be regarded in the same way as necessary for space transport vehicles taking off and landing as means of transport between Earth and space (for example for supply flights to the ISS), but also for space vehicles for tourist space flights. This argues in favour of an analogous application of Art. 5ter of the Paris Convention to space vehicles.

© 2014 - 2025 Dr. Wolfram Schlimme
 

The question of whether an invention relating to outer space can be covered by patent protection at all will be analysed here for the territory of effect of the German Patent Act. Since the principle of territoriality applies to the applicability of the German Patent Act, it could be argued that an invention relating to outer space is located outside the territory of effect of the German Patent Act, at least with regard to its part relating to outer space, so that the Patent Act cannot be applied to such an invention.

Based on this argumentation, an examining section of the German Patent and Trade Mark Office (GPTMO) had rejected German patent application 198 56 231.4 relating to a satellite constellation and based the rejection on the fact that the satellite constellation claimed therein was located in outer space and thus affected international law, so that it was not accessible to national patent protection. Consequently, there was no legal basis under the German Patent Act.

In the appeal proceedings [BPatG 20 W (pat) 38/03 of 15 September 2003 - 'Satellitenkonstellation'], the Federal Patent Court found that the patent application could not be rejected on the basis of the (alleged) lack of jurisdiction of the GPTMO for the subject matter of the application, as the grounds for rejection are listed exhaustively in Section 48 of the German Patent Act. A patent must be granted irrespective of the issue of whether, how and where the IP right is utilised. In principle, the Office does not have to deal with utilisation issues.

These unambiguous statements by the Federal Patent Court make it clear that inventions relating to space are also generally eligible for patent protection in Germany. Whether and how such a patent can be enforced is therefore not a question to be examined in patent examination proceedings.

© 2014 - 2025 Dr. Wolfram Schlimme
 

The sky is the limit - but where does it end ?

Atmospheric airspace ends where outer space begins, even if this boundary is not clearly defined scientifically. International law, namely the Outer Space Treaty, does not provide a clarifying definition. But where does the airspace in which national patent law is applicable end, and where does outer space begin, in which there can be no national claims of sovereignty?

It is a well-established scientific fact that the Earth's atmosphere gradually transitions into space and that there is no clear physical boundary between the uppermost layer of the atmosphere, the exosphere, and outer space. The exosphere continuously transitions into space.

From an altitude of about 80 km, the low air density means that the dynamic pressure on the control surfaces of an aircraft is so low that aerodynamic control is no longer possible. NASA and the US Air Force consider this altitude (50 nautical miles – approx. 80 km) to be the boundary to space. The Fédération Aéronautique Internationale (FAI) regards the so-called Kármán line (100 km above the sea surface) as the boundary between airspace and space.

At an altitude of about 100 km, the density of the atmosphere is so low that, in theory, to generate the lift necessary to maintain that altitude, an aircraft would have to fly at a speed so high that it would be approximately the orbital speed. At this speed and altitude, which we will call the boundary orbit, the centrifugal force is so great that lift is no longer needed to keep the aircraft at this altitude. However, the air density is still noticeable here, so that an object orbiting this orbit is significantly decelerated and would leave this orbit radially inwards without constant propulsion. Without taking into account the slight decelerating effect of the atmosphere that still exists at this altitude, the following statement applies when considering only the radially acting forces for the boundary orbit:

The aerodynamic lift force typical for flying aircraft corresponds approximately to the orbital centrifugal force typical for orbiting the earth with spacecraft (e.g. satellites) in the boundary orbit.

From a flight-mechanical and space-mechanical point of view, flying (in airspace) ends at this altitude and orbiting on orbital paths (in space) begins.

Although the aerodynamic lift of an aircraft depends not only on its speed but also on its mass and aerodynamic design (effective lift area, lift coefficient), and although the centrifugal force also depends not only on the speed but also on the mass, so that different aircraft will have different boundary orbits, the spread, however, is not likely to be very large. Aircraft that could generate aerodynamic lift at such altitudes and do not ascend to these heights as rocket aircraft would resemble not so much the generally known civil or military aircraft that operate in lower airspace, but rather so-called stratosphere aircraft, which are extremely light and have very large and aerodynamically highly effective lifting surfaces. The mass, propulsion and lift properties of such extreme high-altitude aircraft must therefore always be at the limit of what is technically and physically feasible, which in turn means that the spread of the actual altitude values for the boundary orbit of different high-altitude aircraft is likely to be small. It therefore seems justified to speak of ‘one’ boundary orbit for legal definition purposes.

Although from a scientific point of view there is no clear boundary between the airspace in the atmosphere and outer space, it is proposed that the above flight-mechanical and space-mechanical technical definition of the boundary orbit, specifically the Kármán line at an altitude of 100 km, be used as the legal definition of the boundary between airspace and outer space, in particular for the purposes of industrial property protection and specifically for patent law purposes.

Even in other countries, there are only a few that have drawn a clear legal definition of the boundary between airspace and outer space. The Republic of South Africa defines the beginning of outer space as ‘space above the surface of the earth from a height in which it is in practice possible to operate an object in an orbit around the earth’. In its space law, Australia has defined a height of 100 km above mean sea level as the boundary between airspace and outer space. Russia also favours the 100 km level as the boundary between airspace and outer space, arguing that there is no longer sufficient air density at a height of 100 km to provide a lifting effect.

A legal definition of the boundary between airspace and outer space along the lines of the above proposal would therefore be technically and scientifically justified and would not be an exception in international terms..

© 2014 Dr. Wolfram Schlimme
 

In order to effectively carry out an offence under patent law, an infringing action must be carried out within the effective territory of the patent law concerned. To do this, it must first be clarified which actions constitute a patent infringement, and then it must be determined whether this action was carried out in whole or in part within the effective territory of the applicable patent law. The examination of the unlawfulness of the infringing action, which is also necessary for the assessment of a patent infringement, plays no different role in the discussion of the issue of extra-terrestrial activity than it does for patent infringements on Earth. However, the question of unlawfulness may be important with regard to the possible precedence of international law over national/regional patent law.

The principle of territoriality requires that at least one infringing action must take place within the scope of the corresponding patent law, i.e. in its territory of effect, in order to constitute a patent infringement. An action that makes use of a patented concept in the territory of application and takes place entirely in free space, i.e. outside the territory of effect, does not of course constitute a patent infringement, since the territorial link to the territory of effect is then missing and the corresponding patent law is not applicable. However, the question of whether a patent infringement has occurred becomes interesting if the action can be split and part of the action takes place in the territory of effect and the remaining part in free space, or if part of the patented teaching is realised in the territory of effect and the remaining part in free space. Examples of this can be found in my paper on this topic. (Dr. Wolfram Schlimme: "Patentschutz im Weltraum", in: "Mitteilungen der deutschen Patentanwälte", Jahrgang 2014, Heft 8/9, S. 363-378).

It should be noted that the assessment of an (allegedly) patent-infringing action must not lead to a spatial or territorial monopolisation in the sense of an appropriation of outer space, the moon or any other (extraterrestrial) celestial body or any part thereof.

However, an absolute rejection of space-related patents is not supported by the space treaty. A patent that does contain a space reference but is otherwise directed to features that have been realised in the corresponding territory of effect, and in which no appropriation or monopolisation of space, the moon or another (extraterrestrial) celestial body or a part thereof occurs as a result of the space connection, should be considered as enforceable under the national law applicable in the territory of effect.

The enforceability of a patent directed to a space object or a part thereof within the territory of effect of the patent in question is considered to be entirely uncritical, provided that the state legislating in the territory of effect has jurisdiction and control over the space object. And a case in which the patent infringement is realised on board the space object, for example in its payload, should also be regarded in the same way.

The possibilities of obtaining patent protection with enforceable effect in space, on the moon or on other (extraterrestrial) celestial bodies are very limited due to the lack of international space patent legislation. However, future private-sector investment in the development of space technologies will only be attractive if a temporary monopoly of use for the developed technology is granted in recognition of new and inventive development investment. Such a space patent can be perfectly consistent with the provisions of the Outer Space Treaty if it monopolises the use of a particular technical solution in space, on the moon or on another (extraterrestrial) celestial body, but not the space, the moon or the other celestial body or parts of them per se. In any case, national patents do not provide a sufficient basis for such a regulation, due to the prohibition of appropriation under Article II of the Outer Space Treaty, which includes the moon and other (extraterrestrial) celestial bodies..

© 2014 Dr. Wolfram Schlimme