Patenting in space: what we already know and moving forward from there

Carl Cristo’s, “Science soars like an eagle however law drags on like a turtle” somehow describes the current state of space invention patenting. It’s a well-established fact that space technology is undoubtedly one of the most advanced technical areas in the world which has naturally been the fruit of pure intellectual creationism. However, debates around these intellectual properties in the extra terrestrial realm have surfaced recently. This has happened in major part due to an ever growing reallocation of space activities from the state to private entities.

Intellectual Property in Space

On October 4^th, 1957, SPUTNIK-1, the world’s first artificial satellite, was launched by the USSR, which officially marked the beginning of the “Space Age”. This ushered in international space agreements and treaties like Outer Space Treaty, the Rescue Agreement, Liability Convention, Registration Convention and Moon treaty. Countries like US, Russia, Canada among others have attempted to formulate legal frameworks since having recognized the importance of protecting and legally enforcing intellectual property rights in Space. These legislations are expected to define a country’s rights, obligations and the scope of its jurisdictions and control over their intellectual properties. The first issue that warrants discussion is the applicability of national/regional patent law in outer space. As we know, patents are exclusive rights granted by the national government to an inventor to exclude the public from the appropriation of their invention for an average period of 20 years. Now, since this form of intellectual property is granted by national governments, by extension they are inherently territorial in nature and can only be enforced within said jurisdiction. Hence, if an inventor wants to obtain similar rights to an invention in another country, they can file a separate patent application in the country of their choice. However this begs the question: Whether territorial jurisdiction principle under intellectual property law permits the extension of each national law to the objects a country has registered and launched into outer space? There also exists the issue of difficulty in determining and detecting extra territorial patent infringement in space.

Existing Legislations on Space Appropriation

Since there is no formal legislation directly referencing these issues, we shall attempt to analyze and draw from the existing authorities and principles in addressing these concerns, the most basic of which is, whose territory is space?

On December 20^th, 1961, the United Nation passed Resolution 1721 containing the following principle:
“(a) International law, including the charter of the United Nations, applied to outer space and celestial bodies,
(b) Outer space and celestial bodies are free for exploration and use by all States in, conformity with international law and are not subject to national appropriation.”

Further, Article I of the Outer Space Treaty states that the “Outer Space …shall be free for use and exploration by all states”. Article II the Outer Space Treaty discusses that “Outer Space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” We can infer from these that outer space is not subject to sovereignty of any State. It is referred to as a “Res Communis” meaning public domain or public property. No State might claim ownership of outer space or any celestial body which logically implies unavailability of space for any of the nation state’s purposes.

In addressing concerns of registration of space objects, several international treaties and conventions like Moon Convention and UN Convention on Registration of Objects Launched into Outer Space (1976) exist for the purposes of providing registration to space objects launched in space by contracting states. Intergovernmental organizations are required to set up a registry compulsorily and publicize the knowledge regarding the launch of any object in to outer space.  Article VIII of OST states that the nation on whose registry such object is carried will have the sole jurisdiction and where two or more launching states exist, they shall cooperatively resolve whose registry the object is to be registered under.

Under a number of international agreements, registered space objects are treated as quasi-territorial for the purposes of intellectual property law. Adopting the quasi territorial principle to a space object would imply that such space objects would be subject to the national law of the registry country in matters of jurisdiction and laws. This principle will also naturally assume that any intellectual property infringed in outer space be treated as if the infringement had occurred within the territorial jurisdiction of the registry country and hence by extension warranting the same standard of enforcement as is available in the said country.

Article 5 of Paris Convention guarantees the freedom of transport understood as the doctrine of temporary presence that provides exception to the exclusive rights granted by a patent. The Doctrine of Temporary Presence, an exception to patent infringement allows a vessel or aircraft registered in foreign country to use a protected invention on board in case of necessity or for the purpose of construction or working of the vehicle while being within foreign jurisdictions without it amounting to infringement. Once this doctrine can be extended and applied to space invention, we can further solidify claims of quasi territoriality and registration of objects launched in space to collaboratively understand patenting in space.

All these principles are collaborative with the fundamentals of international law that advocate for space exploration and use of outer space for the overall advancement of human kind against misappropriation by a dominant country. Access to knowledge and information derived from space activities and exploration and the use of space are extremely significant to the understanding of outer space which falls within the public domain of knowledge. In addition to application of doctrine of temporary presence, the registration approach to answer the issue of regional/ national jurisdiction is better than an approach based on nationality itself because the Registration Convention can be depended upon and the launching state can retain jurisdiction.

These principles, however, are very distinct from the principles and motives of intellectual property rights of protection since it is intended to promote the development of science and technology, the exploration of outer space as well as incentivizing innovation and novelty. The discrepancies and gaping abyss between intellectual property laws and space law regime should be solved through a synchronized system which could be developed by the international IPR and space law community under the patronage of UN bodies like Committee on the Peaceful Uses of Outer Space (UNCOPUOS) and the World Intellectual Property Organization (WIPO). Clarifying patent law in space would allow for invention and exploration to increase by protecting the rights of inventors and creating incentives to continue their work.