The last decade or so has seen an increasing shift from government owned space ventures to a rapidly growing commercial space sector. The Ansari X Prize competition, won in 2004 by Scaled Composite’s SpaceShipOne, demonstrated that the prospect of significant financial return can encourage competition between commercial space companies, despite the enormous financial outlay required and the high risk of failure.
Over recent years NASA has taken increasing advantage of such competition and its current business models place great importance on outsourcing large aspects of its projects to third-party suppliers. This is a win-win situation for NASA, since the potential third-party suppliers bear the initial R&D costs and the risk of failure, whilst NASA need only invest in the most promising proposal.
Of course, when faced with such astronomical R&D costs it is vital for commercial space companies to protect their innovations with appropriate IP protection, as would be expected for any company operating in a technological sector. However, a fundamental principal of IP rights is their territorial nature, which leads to an important question for companies operating in the commercial space sector – how can they protect an invention which is made, used or practised only in outer space?
US patent law includes an explicit provision (Section 105 of 35 U.S.C.) concerning such inventions, which specifies that “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.”
No other country has provided such explicit provisions in national law; however, Article VIII of the 1967 Outer Space Treaty states that “a State to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object…while in outer space or on a celestial body.” Furthermore, Article I (a) of the 1975 Registration Convention concerning the registration of objects launched into outer space defines a “launching State” as “a State which launches or procures the launching of a space object, or a State from whose territory or facility a space object is launched.”
Therefore, it can be argued that for any invention that is made, used or practised on an object launched into outer space, the applicable IP law is that of the State in which the object was registered and launched, even if that object is privately owned rather than owned by the State.
For the foreseeable future, it seems almost certain that any spaced-based activities will operate on or from a space station or a space craft. Therefore, for the time being the combination of the 1967 Outer Space Treaty and the 1975 Registration Convention with the appropriate national IP rights may provide some IP protection to businesses operating in the commercial space sector. However, until any attempt is made to enforce such rights, the validity of this argument remains to be seen. In any case, it is clear that as extraterrestrial human activities become more prevalent, the issue of IP protection in space will need to be formally addressed at an international level. This presents a significant challenge, as any international law governing IP rights in outer space will need to be harmonised with existing international law, such as Article I of the 1967 Outer Space Treaty, which specifies that outer space should remain “free for exploration and use by all States without discrimination of any kind, on a basis of equality.”
So, does existing law provide protection for inventions made, used or practised in space? Possibly. Will this issue need to be formally addressed? Almost certainly. When and how will that happen? Watch this space.
This article is for general information only. Its content is not a statement of the law on any subject and does not constitute advice. Please contact Reddie & Grose LLP for advice before taking before any action in reliance on it.