Intellectual Property in Space
Intellectual property is a legal term that refers to creations of the mind, such as inventions, literary and artistic works, and symbols and designs. In the context of the space economy, intellectual property is an important issue because of the potential for discoveries and inventions made in space to have significant commercial value.
One of the main challenges related to intellectual property in space is determining who owns the rights to discoveries made in space.
The Outer Space Treaty of 1967, which provides the framework for international space law, states that space is a common heritage of mankind and that no country can claim sovereignty over any part of it. However, the treaty does not address the issue of intellectual property rights in space.
This has led to some uncertainty about who owns the rights to discoveries made in space, particularly if they are made by private companies. Some argue that private companies should be able to own intellectual property rights to their space-based inventions and discoveries, while others argue that discoveries made in space should be treated as a global commons and made available to all.
Another issue related to intellectual property in space is the lack of clarity around patent law. Patents are legal protections for inventions, but it is not clear whether patents granted on Earth would be recognized in space. This could create a situation where a company holds a patent on an invention on Earth but is unable to protect its intellectual property in space.
United States Government Actions
The United States government has taken several steps related to intellectual property in space, including:
Commercial Space Launch Competitiveness Act
In 2015, the U.S. government passed the Commercial Space Launch Competitiveness Act, which allows U.S. companies to own and sell resources extracted from asteroids and other celestial bodies. The law also provides a legal framework for companies to engage in space mining activities and seek patent protection for inventions made in space.
Executive Order on Encouraging International Support for the Recovery and Use of Space Resources
In 2020, the U.S. government issued an executive order that encourages international support for the recovery and use of space resources. The order states that the U.S. will seek to negotiate agreements with other countries to facilitate the extraction and use of space resources and protect the rights of U.S. companies to engage in these activities.
National Space Policy
The U.S. government’s National Space Policy, states that the U.S. will encourage the development of legal and regulatory frameworks for space activities, including intellectual property protection. The policy emphasizes the need for international cooperation to develop these frameworks and ensure the safe and sustainable use of space resources.
US Patent Act
The U.S. Patent and Trademark Office has issued guidance on patentability and enforceability of inventions made in space. The guidance states that inventions must be made by a person and reduced to practice on Earth to be eligible for patent protection, but notes that the issue is still evolving and may be subject to further legal interpretation. This is reflected in the US Patent Act, 35 U.S. Code § 105 – Inventions in Outer Space.
US PATENT ACT, 35 U.S. CODE § 105 – INVENTIONS IN OUTER SPACE
Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States for the purposes of this title, except with respect to any space object or component thereof that is specifically identified and otherwise provided for by an international agreement to which the United States is a party, or with respect to any space object or component thereof that is carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space.
Any invention made, used or sold in outer space on a space object or component thereof that is carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space, shall be considered to be made, used or sold within the United States for the purposes of this title if specifically so agreed in an international agreement between the United States and the state of registry.
NASA ISS Intergovernmental Agreement 1998
Article 21 of the intergovernmental agreement recognises the jurisdiction of each partner’s courts and allows for national laws to be applied in the modules belonging to the partners. This means that the different IP laws of each partner have to coexist. For instance, if an invention is realised in a USA space element the USA Patent Act will be applicable as the invention is deemed to have occurred on US territory.
ARTICLE 21 INTELLECTUAL PROPERTY
For the purposes of this Agreement, “intellectual property” is understood to have the meaning of Article 2 of the Convention Establishing the World Intellectual Property Organization, done at Stockholm on 14 July 1967.
Subject to the provisions of this Article, for purposes of intellectual property law, an activity occurring in or on a Space Station flight element shall be deemed to have occured only in the territory of the Partner State of that element’s registry, except that for ESA-registered elements any European Partner State may deem the activity to have occurred within its territory. For avoidance of doubt, participation by a Partner State, its Cooperating Agency, or its related entities in an activity occurring in or on any other Partner’s Space Station flight element shall not in and of itself alter or affect the jurisdiction over such activity provided for in the previous sentence
In respect of an invention made in or on any Space Station flight element by a person who is not its national or resident, a Partner State shall not apply its laws concerning secrecy of inventions so as to prevent the filing of a patent application (for example, by imposing a delay or requiring prior authorization) in any other Partner State that provides for the protection of the secrecy of patent applications containing information that is classified or otherwise protected for national security purposes. This provision does not prejudice (a) the right of any Partner State in which a patent application is first filed to control the secrecy of such patent application or restrict its further filing, or (b) the right of any other Partner State in which an application is subsequently filed to restrict, pursuant to any international obligation, the dissemination of an application
Where a person or entity owns intellectual property which is protected in more than one European Partner State, that person or entity may not recover in more than one such State for the same act of infringement of the same rights in such intellectual property which occurs in or on an ESA-registered element Where the same act of infringement in or on an ESA-registered element gives rise to actions by different intellectual property owners by virtue of more than one European Partner State’s deeming the activity to have occurred in its territory, a court may grant a temporary stay of proceeding in a later-filed action pending the outcome of an earler-filed action Where more than one action is brought, satisfaction of a judgment rendered for damages in any of the actions shall bar further recovery of damages in any pending or future action for infringement based upon the same act of infringement
With respect to an activity occurring in or on an ESA-registered element, no European Partner State shall refuse to recognize a license for the exercise of any intellectual property right if that license is enforceable under the laws of any European Partner State, and compliance with the provisions of such license shall also bar recovery for infringement in any
The temporary presence in the territory of a Partner State of any articles, including the components of a flight element, in transit between any place on Earth and any flight element of the Space Station registered by another Partner State or ESA shall not in itself form the basis for any proceedings in the first Partner State for patent infringement
Intellectual Property in Space is Complex and Evolving
While the U.S. government has taken steps to address the issue of intellectual property in space, particularly in the context of space mining and the extraction of resources from celestial bodies, there is a need for international cooperation to develop clear legal frameworks that can provide guidance on issues related to ownership and protection of intellectual property in space.
The issue of intellectual property in space is complex and evolving, and it is likely to become more important as space-based commercial activities continue to grow.