As NASA and its suppliers plan moon habitats, including patenting activity for erecting a 3D printer on the moon and using lunar regolith as a building material, a fundamental question looms: why live on the moon? Since Apollo 17’s mission in 1972, the high costs and risks have deterred further manned missions. However, astronaut Harrison Schmitt, who was part of that mission, believes there’s a compelling reason to return: Helium-3.
An isotope of the ordinary balloon gas, Helium-3 has the potential to power nuclear fusion power plants without generating radioactive waste. It also has other applications in medical imaging and quantum computing. Helium 3 is rare on the Earth but is relatively plentiful on the Moon thanks to billions of years of deposits by solar winds. With some price estimates for Helium-3 at a staggering $20 million or more per kilogram, mining it may provide the economic justification for permanent settlements on the moon.
Schmitt’s dedication to the potential of Helium-3 has led him to add “inventor” to his list of titles. He is a co-inventor on a patent application that was published in June directed to a lunar regolith processing system. The application outlines a 4-in-1 mobile mining platform that includes an excavator, a hopper, a mill, and a refinery for extracting volatile gases, such as Helium-3, from lunar regolith. The application envisions a future where lunar infrastructure is advanced enough to support large-scale operations, with a separate refinery platform connected by a flexible pipe, and power supplied via microwave radiation from a station elsewhere on the moon. However, for the early stages of lunar development, the application suggests that the mining system could be powered by solar photovoltaic panels and could include long-range communication systems for remote operation from Earth.
The patent application is assigned to Interlune Corporation, a startup that emerged from stealth mode in March. The company has quickly garnered attention, thanks in part to its leadership team, which includes Schmitt, CEO Rob Meyerson (former president of Blue Origin), and CTO Gary Lai (former chief architect at Blue Origin and co-inventor on the patent application). Interlune was one of 11 awardees of NASA’s TechFlights program and has received a $348,000 grant to test its mining system on a series of reduced-gravity airplane flights.
Interlune’s decision to emerge from stealth mode shortly before its patent application published underscores the strategic balancing act faced by all patent applicants between gaining a monopoly through patent rights and maintaining secrecy around their technology.
The underlying concept behind the patent system is that the inventor and the public make a trade: the inventor gets a monopoly on their invention for the lifetime of a patent to recoup research and development costs and make a profit, and the public benefits from properly incentivized innovative activity and by having cutting-edge technical knowledge publicly available during the pendency of the patent and free to use after its expiration. Publication of all issued patents is the public’s due as part of that trade. Patent applications are typically published 18 months after a patent application’s earliest filing date, which was the case for Interlune. The impending publication of its patent application may have influenced the decision to emerge from stealth mode.
Patent applicants can sometimes keep their innovations secret for longer by filing a nonpublication request with their patent application. Patent applications do not grant monopoly rights; an applicant only obtains those rights if the patent application issues as a patent after the U.S. Patent & Trademark Office’s (USPTO) review. Accordingly, to maintain fairness between the patent applicant and the public, patent applications do not always publish (as they do not grant monopoly rights), but issued patents do always publish (as they do grant monopoly rights). However, a patent applicant forfeits the right to request nonpublication of their application if they file in a different country that does require publication of their application 18 months after filing.
Interlune did not have the option to file a nonpublication request because it also filed an international Patent Cooperation Treaty (PCT) patent application, a wise choice as its biggest competition may be outside the United States. In particular, China is actively interested in mining on the moon. China’s Chang’e 4 mission in 2018 and Chang’e 5 mission in 2020 both returned with samples to determine the amount of Helium-3 present in lunar regolith, and China is currently developing an $18 billion magnetic launch system to hammer throw mined Helium-3 back to Earth.
Could Helium-3 trigger a modern-day space race akin to the California Gold Rush? A perilous and expensive journey did not dissuade the 49ers, and the California Gold Rush caused the population of California to surge and led to California’s admission as a state just two years after gold was discovered. If history repeats, we may soon be asking how to build habitats on the moon more quickly and not why habitats should be built in the first place.
In the meantime, patent publications are a key resource for finding information that might otherwise be kept confidential, whether you intend to mine the moon or merely keep up with your competitors here on Earth.
Kate Nuehring Su is a partner and patent attorney at the Chicago-based intellectual property law firm Marshall, Gerstein & Borun LLP. She is a creative problem-solver who helps innovative companies and individuals protect their ideas, as well as gain competitive intelligence through IP analysis. She may be reached at knuehringsu@marshallip.com.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney. Views expressed are those of the author and are not to be attributed to Marshall, Gerstein and Borun LLP or any of its former, present, or future clients.
