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SpaceX's Challenge Against Blue Origins' Patent Fails To Take Off

Posted by samzenpus on from the take-them-to-court dept.

speedplane writes As was previously discussed on Slashdot, back in September SpaceX challenged a patent owned by Blue Origin. The technology concerned landing rockets at sea. Yesterday, the judges in the case issued their opinion stating that they are unable to initiate review of the patent on the grounds brought by SpaceX. Although at first glance this would appear to be a Blue Origin win, looking closer, the judges explained that Blue Origin's patent lacks sufficient disclosure, effectively stating that the patent is invalid, but not on the specific grounds brought by SpaceX: "Because claim 14 lacks adequate structural support for some of the means-plus-function limitations, it is not amenable to construction. And without ascertaining the breadth of claim 14, we cannot undertake the necessary factual inquiry for evaluating obviousness with respect to differences between the claimed subject matter and the prior art." If SpaceX wants to move forward against Blue Origin, this opinion bodes well for them, but they will need to take their case in front of a different court.

61 comments

  1. So... by Anonymous Coward · · Score: 0

    If you patent something, make sure to be as unspecific as you can, then you will always win?

    1. Re:So... by HornWumpus · · Score: 1

      No, if you are too unspecific you will fall to prior art. If you are too specific they will just avoid the patent by changing a mentioned detail.

      Your shyster files a bunch of patents with various degrees of specificity.

      --
      John McAfee 'It was like that time I hired that Bangkok prostitute; to do my taxes, while I fucked my accountant'
    2. Re:So... by Anonymous Coward · · Score: 1

      > ... as unspecific as you can, then you will always win?

      PATENT == CLEAR, EVIDENT, OPEN TO VIEW

      Hence, there cannot be anything vague or the patent is not, erm, patent.

      The original French term is "patent letter", a document which is open for anyone to read. That is the trade-off one does to get an authorization for exclusive exploitation of an invention or product.

      Of course, "modern" patents have been distorted to become a way to hide technology and effectively hamper progress.

    3. Re:So... by Teancum · · Score: 3, Insightful

      Those who support the patent system claim that their purpose is to disclose all of the information that somebody "skilled in the art" (aka somebody trained in that specific engineering field with credentials, degrees, or some other recognition of competence) can take the information disclosed in the patent and be able to duplicate the invention.

      In former times, the USPTO actually required either a copy of the invention or a working model to demonstrate the concept. Thousands of these models can still be found floating around the USPTO building, including some funny perpetual motion machines that have been tried before. The working models at least forced the patent developer to show that the idea was physically possible.

      I might even buy this argument, assuming that it was possible with the patent application and supporting documents to be able to treat the USPTO as a sort of archive of technological knowledge. Unfortunately, as you sort of point out, it doesn't do any of that, nor is there any way for an engineer to be able to dig through the stacks of patent applications of years past to try and come up with some interesting ideas for future products or even simply to figure out how something worked, like the Saturn F1 engine (or something comparable from 50+ years ago).

      The current patent database is a waste of paper, time, and effort beyond a way for large companies to grind into the dust any small company that can't afford the patenting process. It is IMHO the single best thing to shut down small business development and kill job creation in general. I have to presume those are goals for politicians who support the patent process?

  2. International waters by jbeaupre · · Score: 1

    How is the patent enforceable in international waters? Federal courts have ruled they aren't in other lawsuits.
    http://www.lexology.com/librar...
    I'm genuinely curious.

    --
    The world is made by those who show up for the job.
    1. Re:International waters by Anonymous Coward · · Score: 1

      Presumably to do the method described in the patent, it would need to be implemented in the technology. This technology needs to be created and built somewhere. So although I'm guessing they couldn't enforce it during the landing, they could try and enforce it during development, construction, etc
      But I'm not a lawyer.

    2. Re:International waters by sycodon · · Score: 1

      Why is it again they want to land on a platform at sea instead of back on the ground?

      Plenty of open space in South Texas.

      --
      When Fascism comes to America, it will call itself Anti-Fascism, and tell you to give up your guns.
    3. Re:International waters by Coren22 · · Score: 3, Informative

      Space launches tend to go east in order to pick up the Earth's spin to reduce the speed needed by that amount. Therefore, when launching from Canaveral (or that newfangled launch pad in Virginia Beach), a sea landing is the only logical choice.

      --
      APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
    4. Re:International waters by Richard_at_work · · Score: 1

      Because the companies involved are not in international waters...?

    5. Re:International waters by everett · · Score: 1

      Not nearly as much open space as there is in the pacific ocean. I imagine a rocket crashing in San Antonio would cause some concerns.

      --
      Sig withheld to protect the innocent.
    6. Re:International waters by jacks+smirking+reven · · Score: 1

      SpaceX is not allowed by the FAA (and I assume NASA/USAF have something to say as well) to to perform landings on land until they can prove that the system works reliably, so the way around that is use the barge. I believe they are already prepping a landing pad in Cape Canaveral and eventually they will likely land back to their launch site in Texas once completed. I would say 2016 is an optimistic date to see a land-landing if they get a few landed on the barge this year.

    7. Re:International waters by Anonymous Coward · · Score: 0

      Probably because they're only landing the thing in the water, not building it there.

    8. Re:International waters by burtosis · · Score: 1

      Simple, America owns the world. Sure there have been rejections in the past. But how many were from first class citiz^h^h^h^horporations? Likely those are just second class idiots with no real rights. Or they plan on landing inside Territory belonging to a country with valid patent laws and existing IP. I'm not sure which is more reasonable to be honest.

    9. Re:International waters by Michael+Woodhams · · Score: 3, Informative

      Furthermore, that is why rockets launch from the east coast in the first place: if something goes wrong, the flaming debris comes down over the sea.

      However, SpaceX are aiming to do a return to launch site for recovering their stage I boosters. (This surprised me - this must use more fuel than land-at-sea, and the mass of that fuel is directly subtracted from your available stage II payload.) The landing at sea is an interim measure while they prove the technology (because of the afore mentioned potential for flaming debris.)

      --
      Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
    10. Re:International waters by Patent+Lover · · Score: 1

      Too bad if you happen to lane in North Mexico.

    11. Re:International waters by Guspaz · · Score: 4, Informative

      The ultimate goal is for the rockets to get back to landing pads near their launch pad, including their launches from Florida. They're only landing at sea right now because they need to demonstrate a consistent track record before the interested parties will let them attempt a return-to-launch-site landing. They've got various approval processes going on to build landing sites at Kennedy Space Centre. Based on where the Falcon 9 staging happens, it doesn't take that much more fuel to return to the original launch site versus an offshore ship.

      That's not to say that all their effort into the drone ships is wasted. Apart from the obvious need to demonstrate safe landings on hard surfaces before doing it on actual land, there are some circumstances in which they'll not be able to return to the launch site. Very heavy payloads that eat into their reusability fuel budget, for example. Another is the center core of the Falcon Heavy: it separates much later than the two side cores of the rocket, which means that by the time it separates it's going much faster and is much farther away. Those will always have to land at sea. There are rumours, however, that SpaceX has plans to refuel the rockets on the drone ship after they've landed and then fly them back to the launch site propulsively.

    12. Re:International waters by Immerman · · Score: 2

      I've heard that, long term, there are two alternate plans, depending on the percentage of payload/delta-V being used: if the target orbit requires enough of the total capacity to make returning to the launch site infeasible, it will instead land on the floating barge to refuel, and *then* fly back to the launch site.

      I suspect that landing at sea, while less energy intensive, is considerably more difficult - especially considering that you now need favorable weather at both the launch and landing sites to have a decent chance of success.

      --
      --- Most topics have many sides worth arguing, allow me to take one opposite you.
    13. Re:International waters by Teancum · · Score: 1

      SpaceX keep changing their mind, it seems, as to if they will continue to use the barge after they get FAA-AST clearance to land on the landing pad at KSC. It appears as though they want to keep the option available for either super heavy launches that push the fuel envelope, like what can happen with the GEO launch that just happened, or for trying to recover the Falcon Heavy central core (which will be quite far down range when it finally does stage separation).

      For many launches though, they do plan on eventually going back to the original launch site if possible. On the other hand, there are two barges that SpaceX is using, with one on each coast at the moment (the west coast one being kept near Los Angeles when not recovering rockets from Vandenberg).

    14. Re: International waters by bill_mcgonigle · · Score: 0

      gosh, it'd be rather un-aerodynamic without the nose-cone. I rather suspect they'll wait to deorbit until the timing is right for the desired landing zone.

      Unless there's a crazy-orbit launch with no good rendezvous, in which case landing on a barge is still going to be much cheaper than building a new rocket by an order of magnitude. This is good enough reason to proceed with clearing the patent. That and spanking BO's deserving ass.

      --
      My God, it's Full of Source!
      OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
    15. Re: International waters by Immerman · · Score: 3, Informative

      The first stage is suborbital, so that's not really an option. And when it comes to aerodynamics, on the way up it's pushing hypersonic speeds with a not-even-supersonic-friendly profile, not even the usual "nose-needle" to break the shockwave, presumably because it's having to fight gravity the whole way without lift surfaces, so can't face directly into the line of motion. Plus with the fact that it doesn't start really pouring on the speed until it's mostly clear of the atmosphere anyway.

      Bottom line - it's a rocket: with minimal lift surfaces efficiency isn't really high on it's feature list to begin with. On the return trip it's free to travel at much lower speeds though - it's basically a tradeoff between air resistance and the fuel consumed to hold it in the air instead of falling like a rock. Still, fuel is currently only a couple percent of the total cost of a launch, so even if you had to double the amount used you'd still see negligible effect on the total launch cost. First they have to get rocket reuse working - once you can get a half-doze uses out of a rocket, then maybe it makes sense to start worrying about efficiency on the return trip.

      --
      --- Most topics have many sides worth arguing, allow me to take one opposite you.
    16. Re:International waters by K.+S.+Kyosuke · · Score: 1

      if something goes wrong, the flaming debris comes down over the sea.

      Unless you're a German banana freighter, otherwise Apollo 11's Saturn V will hit you no matter what. ;-)

      --
      Ezekiel 23:20
    17. Re: International waters by bill_mcgonigle · · Score: 1

      The first stage is suborbital, so that's not really an option.

      Yes, you're right of course. I must've been thinking Dragon v2 rather than the first stage burnback. durr.

      Still, fuel is currently only a couple percent of the total cost of a launch, so even if you had to double the amount used you'd still see negligible effect on the total launch cost.

      Interesting - kerosene may well be cheaper than shipping a rocket across an ocean.

      --
      My God, it's Full of Source!
      OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
    18. Re: International waters by Immerman · · Score: 1

      I suspect a bigger issue is protection from sea spray and the lateral stresses of crossing hundreds of miles of open ocean, neither of which can be healthy for a rocket. Either they have to secure the 13-storey rocket on the landing barge (or a cargo vessel) to get to land, then transfer it to a vehicle capable of carrying it overland to the refurbishing site (the largest military cargo helicopters could *just* carry it, but only have a range of a few hundred miles), or they fly it home under it's own power. It might eventually make more sense to build dedicated equipment to transport it, but if you're only getting a few launches a year...

      --
      --- Most topics have many sides worth arguing, allow me to take one opposite you.
  3. Just hire (or capture) by invictusvoyd · · Score: 1

    Wernher von Braun

  4. Why can't they fairly negotiate? by Anonymous Coward · · Score: -1

    Blue Origin legitimately spent massive resources developing this method and deserve compensation if SpaceX wants to use it. Having a patent invalidated at this, the point where it's finally about to become useful, is criminal.

    1. Re:Why can't they fairly negotiate? by Coren22 · · Score: 5, Insightful

      You are funny. I believe it is Space X that poured money into actually doing it and Blue Origin just spent money filing a patent.

      --
      APK likes to ask for responses to the same things over and over. Maybe he just likes the responses?
    2. Re:Why can't they fairly negotiate? by _merlin · · Score: 2

      Sounds a lot like the all-American inventor hero Edison.

    3. Re:Why can't they fairly negotiate? by hey! · · Score: 1

      There was a period in the early 00's when one of the my company's manager would periodically walk through my office door and the first words out of his mouth was "I just read about this patent..." and I'd stop him right there.

      "This is going to be one of those things where the extent of the filer's 'invention' was to take something people were doing with LORAN fifty years ago, cross out 'LORAN' and write in 'GPS', isn't it?"

      "Well," he'd begin.

      "I don't want to hear about it. It's guaranteed to be invalid on the basis of obviousness, but if they get lucky in court and I've actually read or even heard about that specific patent they'll be able to take us to the cleaners."

      You'd be amazed at some of the technology patents the patent office grants. Stuff anyone who'd been a practicing engineer for more than a few months would laugh his ass off at if he were patent examiner.

      --
      Post may contain irony: discontinue use if experiencing mood swings, nausea or elevated blood pressure.
    4. Re:Why can't they fairly negotiate? by Michael+Woodhams · · Score: 1

      I can't tell if you're serious.

      The idea of landing a stage on rocket power for reuse has been around for decades (DC-X comes to mind, there may be earlier examples.) As rockets generally launch seaward for safety reasons, that you might want to land one at sea is obvious. The idea of using a ship as a landing platform has also been around for decades. There is nothing that should be patentable in the big idea "landing a rocket on a ship".

      Within this general idea, there are bound to be many smaller patentable ideas: e.g. method for automatically securing a rocket to a deck when it could be up to 15m away from the target landing point.

      --
      Quattuor res in hoc mundo sanctae sunt: libri, liberi, libertas et liberalitas.
    5. Re:Why can't they fairly negotiate? by Anonymous Coward · · Score: 0

      Because BO developed NOTHING OF THE SORT. Its a blatant copy of someone elses work.

    6. Re:Why can't they fairly negotiate? by Anonymous Coward · · Score: 0

      Blue Origin was founded two years before SpaceX, and they've spent a considerable amount of money on making things. They just don't have the incredible PR and Bond-villain CEO that SpaceX has.

    7. Re:Why can't they fairly negotiate? by rahvin112 · · Score: 2

      Or Westinghouse or any of the major other industrial era inventors. In fact the more things change the more they stay the same.

      Could you name a single person that developed something, patented and built a business on it? People like Edison that manage the development or purchase/steal the idea are the norm, not the solitary inventor who becomes a millionaire.

    8. Re:Why can't they fairly negotiate? by Anonymous Coward · · Score: 0

      > Blue Origin legitimately spent massive resources developing this method and deserve compensation if SpaceX wants to use it.

      Another poster says it was the other way around (Blue Origin would be a patent troll, thus).

      But even if it spent "massive resources", what does it have to do with anything?

      LOL, you spent 50 million bucks to devise tele-transport and the Joneses' 14-year old built an equivalent thing to avoid being late to school. You know what? Fsck you!

      This is called being an entrepreneur. You put money expecting a ROI; sometimes, sh*t happens and you have to assume the risks of failure. Don't want risks? Open a bank, it's way less risky (unless you are stupidly dumb, like we've seen recently).

      I find simply incredible how anyone with enough money can lobby for laws to protect his/her company from capitalism. How is this acceptable in a Western economy? This is exactly what would happen in a banana republic!

    9. Re:Why can't they fairly negotiate? by Guspaz · · Score: 1

      Why should they get a monopoly on doing something just because they spent money trying to do it? Should nobody but SpaceX be allowed to send recoverable spacecraft into orbit, just because they spent a bunch of money doing it and were the first private entity to do so?

    10. Re:Why can't they fairly negotiate? by nadaou · · Score: 1

      Come on now, give the guy some credit. Edison Carter got his hands dirty all the time.

      --
      ~.~
      I'm a peripheral visionary.
    11. Re:Why can't they fairly negotiate? by Anonymous Coward · · Score: 0

      Could you name a single person that developed something, patented and built a business on it?

      Larry Page?

    12. Re:Why can't they fairly negotiate? by Anonymous Coward · · Score: 0

      > Could you name a single person that developed something,
      > patented and built a business on it? People like Edison that
      > manage the development or purchase/steal the idea are the
      > norm, not the solitary inventor who becomes a millionaire.

      Do we get bonus points if TFA is about their company?

    13. Re:Why can't they fairly negotiate? by Anonymous Coward · · Score: 0

      Karon Moses Lake, Von Horn W. Texas, PM1... Blue Origin did build stuff.

    14. Re:Why can't they fairly negotiate? by Teancum · · Score: 1

      "I don't want to hear about it. It's guaranteed to be invalid on the basis of obviousness, but if they get lucky in court and I've actually read or even heard about that specific patent they'll be able to take us to the cleaners."

      This is one of the aspects of the whole concept of a patent that to me invalidates why patents even have a right to exist. The purpose of a patent, according to the U.S. Constitution, is "To promote the Progress of Science and useful Art". I fail to see how the current system even attempts to secure that goal if engineers are basically prohibited from even hearing and talking about various patents.

    15. Re:Why can't they fairly negotiate? by cjameshuff · · Score: 2

      Or an actual launch vehicle.

    16. Re:Why can't they fairly negotiate? by turp182 · · Score: 1

      How about Elon Musk himself? He doesn't seem to be a patent shrill (he makes things, faster than we expect in most cases). He didn't create all of the patents he controls, but those working for him did (assumption, he may have bought some patents, bet he's using them). He's into solar, space, electric cars (all thanks Dr. Seuss, "and Mars").

      He's pretty incredible actually. And he's more than a millionaire.

      --
      BlameBillCosby.com
    17. Re:Why can't they fairly negotiate? by Anonymous Coward · · Score: 0

      They aren't trying to get a monopoly. They're trying to get a theoretical monopoly by someone who just thought of it and never proved it in practice /dismissed/ so they aren't barred from operating (or in general, so they aren't harassed for it)

    18. Re:Why can't they fairly negotiate? by kellymcdonald78 · · Score: 1

      They haven't flown anything in 3 years (and that was a capsule abort test). The sub-orbital vehicle "New Shepard" hasn't flown since 2011. Even Virgin Galactic flies more often than BO. SpaceX has flown more operational flights in the past 6 months than BO has had test launches since the company was founded. SpaceX may have better PR, but then again they are actually doing stuff beyond publishing the odd PowerPoint every few years

  5. Anyone else notice by Anonymous Coward · · Score: 0

    that the patent mentions landing the opposite way from the way that spaceX lands?

    Meaning the rocket has another engine pointed the other way at the other end of the first stage.

  6. I cheer every time a patent is invalidated. by Anonymous Coward · · Score: 1

    One small step for man, one giant leap for mankind.

    1. Re:I cheer every time a patent is invalidated. by penguinoid · · Score: 1

      For every patent invalidated, a hundred more take its place.

      --
      Don't waste your vote! Vote for whoever you want, unless you live in a swing state it won't matter anyways
    2. Re:I cheer every time a patent is invalidated. by Anonymous Coward · · Score: 0

      Don't worry - they'd be taking its place whether or not it was invalidated!

  7. Claim 14 by wiredlogic · · Score: 1

    How can a dodgy subordinate claim invalidate the rest of the patent? If it was that easy there'd be a ton of software patents that could be tossed out en masse.

    --
    I am becoming gerund, destroyer of verbs.
    1. Re:Claim 14 by EEPROMS · · Score: 1

      the majority of software patent cases that reach the court do fail, we only hear about the wins not the 20-50 failures that proceed the win.

    2. Re:Claim 14 by stevedog · · Score: 1

      Claim 14 is an independent claim (https://www.google.com/patents/US8678321).

  8. Incredible by Anonymous Coward · · Score: 0

    When in the USA a patent court said that you invention is unpatentable, Its have to be pretty obvius, Because in the USA even water is patentable.

  9. Wow, by Anonymous Coward · · Score: 0

    It seems the court said that they can't determine if the patent is obvious because it is vague.

    As for obvious, it would seem that Mr. Buck Rodgers Plus the flyout tragectory would point one to land tail first a sea.
    Sounds a bit like a game of clue?
    The general plan is obvious, the details to make is actually work are not.
    It would seem that Blue patented the easy general plan, but X is doing the hard work to make it actually work.
    One might ask if Blue patented something when they did not know how actually to make it work.
    Aside from a bad patent, that would seem like fraud to me.

    Perhaps if Blue is smart, they will offer X a free license to use their 'technology' in exchange for dropping any attempt to squash the patent.
    That would be win/win for Blue and X.
    Alternatively, Blue likely looses their patent and X has to expend useless effort to right a patent wrong.

    And as usual, lawyers win no matter what happens.

    1. Re:Wow, by NormalVisual · · Score: 1

      Perhaps if Blue is smart, they will offer X a free license to use their 'technology' in exchange for dropping any attempt to squash the patent.

      Wouldn't it kind of defeat the purpose of patenting the idea if the only company that would have the need to use the patented invention was given permission to use it for free? Granted, the patent still has 15 years to go before it runs out, but SpaceX is likely to be the only company using the technology in the near future.

      --
      Please stand clear of the doors, por favor mantenganse alejado de las puertas
    2. Re:Wow, by Teancum · · Score: 1

      It could be treated as a defensive patent. Basically saying that the whole concept of patents stink, but as a necessary evil since they do exist we should try to get a bunch of patents anyway to make sure our competitors don't sue us into the ground with patent lawsuits of their own. It becomes a massive patent war where you can charge back with your own patents, or go after trolls because you not only have prior art but have prior patents that should have been cited by any subsequent patent claims.

      Prior art is one thing, but a prior patent takes precedence like none other in federal court. For that matter, a prior patent is useful even if it has expired.

  10. I'll be rich! by Dereck1701 · · Score: 1

    I knew the patent system was horribly broken but this is obscene. Perhaps I'll patent "Utilizing a multi-wheeled conveyance to traverse a network of engineered level surfaces to traverse from an origination point to a destination point". This patent doesn't seem to cover any real technology but the general idea of "launching from a land site and landing on an ocean platform".

    1. Re:I'll be rich! by TechyImmigrant · · Score: 1

      I knew the patent system was horribly broken but this is obscene. Perhaps I'll patent "Utilizing a multi-wheeled conveyance to traverse a network of engineered level surfaces to traverse from an origination point to a destination point". This patent doesn't seem to cover any real technology but the general idea of "launching from a land site and landing on an ocean platform".

      It's rather like "Do X, but on the internet" patents. However it's "Do X, but at sea on a platform"

      --
      I should use this sig to advertise my book ISBN-13 : 978-1501515132.
    2. Re:I'll be rich! by Teancum · · Score: 1

      In fairness to Blue Origin, the "Do X" happens to be "Make a rocket launch, rise up to a substantial height, and bring the rocket safely back to the Earth in one piece".

      Blue Origin has done that, although the "great height" is debatable. Their New Shepherd test flight is impressive engineering, although watching the Falcon 9 test article fly in Texas is IMHO far more impressive. SpaceX flying a rocket into space (the 1st stage actually gets past the Kármán line even though it doesn't get to orbital velocities) and bringing it back to the ground safely is definitely much, much more impressive. They haven't had the rocket return successfully mainly because of pretty lousy weather in the North Atlantic Ocean on the last several launches, including one storm that nearly destroyed the barge. 30 foot swells overwhelmed the stabilizers trying to keep the barge flat and level.

  11. Spurious patents by prsephton · · Score: 1

    So, Blue Origin just decided one day; "Hey wouldn't it be cool if we could land space ships at sea?" and went ahead and patented the idea without the foggiest notion of how this might realistically be accomplished?

    And now there's a patent that provides the "what" but absolutely no detail about the "how" one might go about doing this?

    I think we need to take a lesson from the past: bring back the law where before a patent may be filed it must first be backed by a valid working prototype. That should fix all those millions of spurious software patents filed each year too.

    The current patent system constricts technology rather than acting as the enabler patents are supposed to be.

    1. Re:Spurious patents by K.+S.+Kyosuke · · Score: 1

      So, Blue Origin just decided one day; "Hey wouldn't it be cool if we could land space ships at sea?" and went ahead and patented the idea without the foggiest notion of how this might realistically be accomplished?

      Nah, they most likely just read about how to do it.

      --
      Ezekiel 23:20
  12. Why did this legaleze reply read like fight club? by Anonymous Coward · · Score: 0

    Narrator: I just need to know if you've seen Tyler.
    Proprietor of Dry Cleaners: I'm not disclosed to bespeak any such information to you, nor would I, even if I had said information you want, at this juncture be able
    Narrator: [Resigned] You're a moron.
    Proprietor of Dry Cleaners: [as Narrator is leaving] I'm afraid I'm gonna have to ask you to leave.

  13. S.O.P for Amazon patents by cozytom · · Score: 1

    Didn't their stupid one click patent fall apart, mostly, for being unspecific?

    I still won't buy anything from Jeff Bezos on purpose.