NASA has been working on commercializing the International Space Station (ISS) for some time now, with the goal of making the orbiting laboratory a destination for space tourism and private industry. The agency has already made strides in this direction by partnering with private companies to send cargo and astronauts to the ISS, and it has opened the station up to commercial usage. This article reviews the practical aspects of utilizing the ISS from the context of businesses.
- Why is NASA interested in commercializing low-Earth orbit (LEO) and what is the role of the ISS?
- What is NASA's plan for commercializing LEO?
- What does NASA consider acceptable commercial usage of ISS resources?
- What type of services does NASA intend to purchase from commercial suppliers after the ISS has been decommissioned?
- How to get your commercial activity on the ISS?
- Are crew members allowed to perform commercial and marketing activities?
- Do U.S. Government ethics requirements impact the ability of U.S. astronauts to support commercial entities under NASA’s policy?
- How much does it cost?
- Is there a minimum amount of crew time resources I have to schedule?
- Why can’t I re-sell resources that I acquire? What does that mean for my business?
- What on-orbit activities count against my purchased crew time?
- What happens to Intellectual Property (IP) generated during LEO activities?
- What are march-in rights?
- Does the government always retain march-in rights?
- What can the government utilize intellectual property for under a government purpose license?
Why is NASA interested in commercializing low-Earth orbit (LEO) and what is the role of the ISS?
The commercialization of LEO is the next step in humanity’s exploration and expansion into the solar system. Low-Earth orbit provides an ideal environment for crew training, research, and hardware testing for exploration use. In order to support the development of future commercial destinations and services, NASA is increasing access to the substantial resources and infrastructure of the ISS to assist the commercial sector in developing and deploying new capabilities in LEO.
What is NASA’s plan for commercializing LEO?
NASA created the Commercial LEO Development Program as a focused effort to develop a robust commercial space economy in LEO and lower the Agency’s costs in the long-term. To achieve these goals, NASA is committed to enabling the development of a LEO economy through supporting the development of increased supply (i.e., future LEO destinations providing services) and demand (i.e., commercial market and demand for on-orbit services or products of commercial value). Both the Congress and the National Space Council have declared that it is in the national and economic security interests of the United States to encourage the development of a healthy and robust commercial sector in LEO.
What does NASA consider acceptable commercial usage of ISS resources?
NASA’s commercial use policy is described in the following document.
What type of services does NASA intend to purchase from commercial suppliers after the ISS has been decommissioned?
Post-ISS, NASA will always have a need for access to a human-rated destination in LEO. NASA intends to be a significant customer of post-ISS services in LEO, as outlined in Forecasting Future NASA Demand in Low-Earth Orbit: Revision Two – Quantifying Demand.
How to get your commercial activity on the ISS?
Are crew members allowed to perform commercial and marketing activities?
Yes. Approved commercial and marketing activities consistent with NASA’s policy are allowed under the Code of Conduct for the International Space Station Crew. This is because those activities are considered ISS duties. The Code of Conduct for the International Space Station Crew states “ISS crewmembers shall refrain from any use of the position of ISS crewmember that is motivated, or has the appearance of being motivated, by private gain, including financial gain, for himself or herself or other persons or entities. Performance of ISS duties shall not be considered to be motivated by private gain.” Accordingly, commercial and marketing activities supported under an authorized written agreement with NASA, and coordinated and scheduled through established crew assignment processes, are not—for purposes of the Code of Conduct for the International Space Station Crew—considered motivated by private gain. U.S. Government astronauts are additionally subject to U.S. Government ethics requirements, which impose additional restrictions on U.S. Government astronaut crewmembers.
Do U.S. Government ethics requirements impact the ability of U.S. astronauts to support commercial entities under NASA’s policy?
Yes. U.S. Government ethics requirements, including but not limited to the prohibition on endorsing products, services or enterprises, will continue to apply to U.S. Government astronauts at all times. Accordingly, in order to be approved, U.S. Government astronaut support of marketing activity must take place behind the scenes without being able to recognize the U.S. Government astronaut in public photos or other media. NASA ethics officials will provide ethics advice and counsel on the application of Federal ethics provisions in conjunction with NASA’s coordination. Also, NASA’s written agreement with partner entities will prohibit the use of information about or depiction of U.S. astronauts in a manner contrary to U.S. Government ethics rules.
How much does it cost?
NASA has released a commercial and marketing pricing policy to address this question. These rates offer interested companies a way to plan their business models and activities as NASA moves towards a more commercial mode of operation. The June 2019 pricing policy was retired on December 31, 2020. Proposals received on or after January 1, 2021, are subjected to the pricing policy updated February 25, 2021.
Is there a minimum amount of crew time resources I have to schedule?
Yes. A minimum amount of time will be required depending on the task, but crew time must be scheduled in 15-minute blocks of time.
Why can’t I re-sell resources that I acquire? What does that mean for my business?
NASA will not allow re-selling of resources. Your signed agreement with NASA to purchase resources governs the use and application of the resources.
What on-orbit activities count against my purchased crew time?
All on-orbit crew time expended in support of your activities counts against your purchased crew time. This includes onboard training, set up, operations, tear down, etc. Crew time to transfer any related hardware from a visiting cargo vehicle to its stowage location on the space station does not count against purchased crew time.
What happens to Intellectual Property (IP) generated during LEO activities?
The allocation of rights in inventions and data depends on the terms of any applicable agreements or contracts. Typically, under NASA contracts and agreements, contractors and partners have the right to retain, or obtain, ownership of inventions they develop under their contract or agreement. Under most procurement contracts, NASA is required to retain a government-purpose license in inventions and data created under the contracts. Allocation of rights under partnership agreements are more flexible. In general, NASA’s partners are not restricted in their use and distribution of data they first produce in the performance of an agreement, or data first produced by NASA under a collaborative or reimbursable agreement.
To facilitate the commercial development of critical technologies needed for human space exploration, NASA takes steps to ensure that its contractors and partners retain the maximum rights permitted by law, unless NASA has identified a specific need for it to obtain rights in intellectual property for its own purposes as part of an agreement. It is part of NASA’s mission to “seek and encourage the fullest commercial use of space,” so it is NASA’s interest to ensure that its contractors and partners are able to leverage investment to advance commercial space activities.
What are march-in rights?
The Bayh-Dole Act provides Federal Agencies with “march-in rights.” (see, 35 U.S.C. § 203). March-in rights allow the government to require the contractor (or patent assignee) to grant a reasonable “nonexclusive, partially exclusive, or exclusive license” to a “responsible applicant or applicants,” if certain specific circumstances exist (e.g., health or safety concerns, lack of practical application, etc.). The foundation of the Bayh-Dole Act supports the principle that inventions resulting from federally funded research should benefit the American people by the development of the inventions into commercially available products and services by achieving practical application of the invention that benefits the public. Should the patent owner refuse to grant the license, then the Government can grant the license itself.
Does the government always retain march-in rights?
Yes, if the Bayh-Dole Act applies, as these rights are statutorily granted pursuant to this act (35 U.S.C. § 203). However, NASA knows of no instances within the over 38-year old history of the Bayh-Dole Act when these march-in rights were ever exercised by any Federal Agency.
What can the government utilize intellectual property for under a government purpose license?
While there is no one specific definition defining the scope of a “government purpose license,” a typical license grant in regard to an invention (or similarly for data), might state: “…the Government shall have a nonexclusive, nontransferable, irrevocable, paid-up license to practice, or have practiced for or on its behalf, the subject invention throughout the world.” (FAR 52.227-11, Patent Rights- Ownership by the Contractor.) This is read to mean that the Government may practice the invention itself, or the Government may permit another to practice it on its behalf (i.e., for the purpose of benefitting the Government).