Inventions Made/Used in the Outer Space – what is the protection available and where can it be protected
Space technology is one of the most advanced technical areas in the world and intellectual creations are vital to outer space activities and it is essential to get protection for the inventions made or used in outer space. However, in recent years, there are issues concerning celestial activities. Some of the reasons for this are that space activities have changed from Government owned activities to private and commercial activities. Since this shift has happened, there are a lot of companies, especially start-ups that focus on the Research & Development of inventions for use in outer space. Space activities are operated under international cooperation schemes, which depend on a simple, uniform, and reliable international legal framework.
Patent protection is one of the most important Intellectual Property Rights concerning inventions related to outer space. Since the patent rights are territorial, the main issue is whether the national Intellectual Property Law of the countries allows the applicant to launch the product registered in the respective countries to the outer space. The international space projects and registered space objects are therefore treated as quasi-territory for intellectual property concluded by international agreements.
There are multiple treaties concerning outer space activities. The United Nations Office for Outer Space Affairs has concluded five international treaties and five sets of principles on space-related activities. The five treaties are 1) Outer Space Treaty, 2) Rescue Agreement, 3) Liability Convention, 4) Registration Convention & 5) Moon Agreement. The five declarations and legal principles are 1) Declaration of Legal Principles, 2) Broadcasting Principles, 3) Remote Sensing Principles, 4) Nuclear Power Sources & 5) Benefits Declaration.
These treaties deal with the problems that arise in outer space because of the launched space objects, monitoring of space activities and preventing harmful interference with space activities, and also the settlement of disputes, if any.
Among the five treaties, the basis of patent law concerning outer space is provided in the Outer Space Treaty and Registration Convention. The Outer Space Treaty which Governs the research and use of Outer Space forms the basis of International Space law. This Treaty prohibits governments from claiming authority over space or any celestial body. Thus, no nation or its citizens can exclusively use any territory in space.
Since private space activities have increased, balancing private rights and public rights is challenging. It is necessary to assure private rights in order to increase the innovative activities relating to outer space, else no one would be interested in outer space research and this in turn would affect the progress of scientific and technological research in the area.
According to the Registration Convention, a launching State is defined as (1) a State which launches or procures the launching of a space object or (2) a State from whose territory or facility a space object is launched. The term ‘launches or procures the launching of’ is unclear and this provides an opportunity to private parties to skip the requirements of the Outer Space Treaty.
There is a necessity to clarify jurisdictional issues at the earliest. If not, a private concern can register their space objects under the most favourable authority to overcome the complications of law.
The United States of America is the only country that has provided an obvious provision concerning inventions relating to outer space.
A multilateral agreement concerning the International space station was signed by Canada, the ESA, Japan, Russia, and the United States in 1998 which provides explicit provisions for the protection of IPR.
Article 21 of this Inter-governmental Agreement talks about the intellectual property rights of the space station and mainly focuses on patent protection. The International Space Station is divided into modules, or elements, each of which is under the jurisdiction and control of a participating nation. Each module is the territory of the State to which the module is registered for purposes of intellectual property law.
Though acknowledging the intellectual property concerning the exploration of outer space is important, it is also necessary to check whether these rights conflict with the fundamental principles in terms of accessing the knowledge derived from the space activities and the freedom of exploration and use of outer space. Globalization of space activities is another reason for the increasing importance of intellectual property rights protection in space.
Since outer space is not under national entitlement, it will be difficult to apply national laws to activities carried out in outer space. The territorial IPR law has to be transponsed into outer space in order to manage this. The current approach will be sufficient for now, however, it will be ideal to look for alternative solutions as the outer space activities are increasing widely.
There is a synchronized need for visionary countries such as India to develop a national law concerning the rights attached to inventions in outer space as well as an international convention that takes into consideration the future prospects.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
The Space Station Agreements
Art. II, Treaty on Principles Governing the Activities of States in the Exploration and use of Outer Space, including the Moon and Other Celestial Bodies (1967), 18 UST 2410, 2413 (1969)
Anna Maria Balsano, Intellectual Property within Public International Research Organizations. The Example of European Space Agency, in Proceedings of the Thirty-Sixth Colloquium on the Law of Outer Space 3, 4 (1994)
Bernhard Schmidt-Tedd & Michael Gerhard, Registration of Space Objects: Which Are the Advantages for States Resulting from Registration, in Essential AIR & Space L. 126 (Marietta Benko & Kai-Uwe Schrogl eds., 2005)] at 126.
Bradford Lee Smith and Elisabetta Mazzoli, Problems and Realities in Applying the Provisions of the Outer Space Treaty to the Intellectual Property Issues, in Proceedings of the Fortieth Colloquium on the Law of Outer Space 169, 171 (1998).
Theodore U. Ro, Matthew J. Kleiman, Kurt G. Hammerle, “Patent Infringement in Outer Space in light of 35 U.S.C. § 105: Following the White Rabbit down the Rabbit Loophole”, 17 B.U.J. Sci. & Tech. L. 202 (2011).
Patents in Space Act, 35 U.S.C. § 105 (1990)
29 Fed. Cl. 197 (1993).
1998 Ust. Lexis 212
Discussion paper prepared by the International Bureau, MEETING OF CONSULTANTS ON INVENTIONS MADE OR USED IN OUTER SPACE, Geneva, March 6 and 7, 1997.
- Oosterlinck, The Intergovernmental Space Station Agreement and Intellectual Property Rights, 17 J. Space L. 23 1989.