Patents in the Field of Outer Space

An Indian spacecraft successfully entered Mars’ orbit, marking it as the first interplanetary mission for the country making India in the process of being the first Asian nation to reach the Red Planet— and the first nation in the world to successfully reach Mars on its first attempt. This post is devoted to raising awareness about the patent laws related to outer space.

Indian Satellite on Mars

Introduction

As we all know patents are granted by state or national governments to inventors. Patents are territorial and are only enforced within the jurisdiction of the granting government. For example, the holder of a U.S. patent may only be able to enforce the patent against someone who is using, making, selling, or importing the patented invention within the United States. Hence, the owner of the invention must file a separate patent application in countries of his interest, i.e where he wishes to obtain exclusive rights to his invention.

The above limitation in implementing rights granted by patents raises a pertinent question while discussing patents in the space domain – whose territory is space?

Laws pertaining to outer space

In this context, it will be worthwhile to examine laws concerning outer space.

Space law can be described as an area of the laws governing activities in outer space that are applicable to national and international law. International lawyers have been unable to agree on a uniform definition of the term “outer space”, although most lawyers agree that outer space generally begins at the lowest altitude above sea level at which objects can orbit the Earth, approximately 100 km (60 mi).

Outer Space Treaty

The Outer Space Treaty, formally known as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Moon, and Other Celestial Bodies. It is a treaty that forms the basis of international space law. The treaty was opened for signature in the USA, the UK, and the Soviet Union on 27 January 1967, and entered into force on 10 October 1967. 102 countries are parties to the treaty, as of May 2013, while another 27 have signed the treaty but have not completed ratification.

Responsibility for Activities in Space

Article VI of the Outer Space Treaty deals with international responsibility, stating that “the activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty” and that States Parties shall bear international responsibility for national space activities whether carried out by governmental or non-governmental entities.

Sovereignty in Outer Space

On 20 December 1961, the United Nation passed a resolution 1721 as follows;

(a) International law, including the charter of the United Nations, applies 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.

Article II of the Outer space Treaty states “outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”. Hence outer space is not subject to the sovereignty of any state. It is regarded as a “Res Communis”, that is it is a public domain or public property.No one nation may claim ownership of outer space or any celestial body. So, outer space is not owned or controlled by anyone and it is available for anyone to use for any purpose. This does not mean that States that are exploring and using outer space cannot exercise any degree of authority.

As far as an object launched into outer space is concerned, in accordance with Article VIII of the Outer Space Treaty, the State on whose registry such an object is carried shall retain jurisdiction and control over that object, and over any personnel thereof.

Importance of IPR in Space Regime

Space technology has been for a long time one of the most advanced technical areas, and outer space activities are, in fact, the fruit of intellectual creations, it is only in recent years that intellectual property in the field of space activities is raised.

The reason is that:

  • Space activities are increasingly now shifting from being state-owned to private and commercial activities
  • An increasing number of space activities are operated under international cooperation schemes, which depend on a simple, uniform, and reliable international legal framework

Intellectual property protection is critical to fostering innovation in space research and exploration. Without protection, inventors would not reap the full benefits of their inventions and would in turn focus less on research and development.

Case Study: International Space Station (ISS)

The International Space Station (ISS) is a space station, or a habitable artificial satellite, in low Earth orbit. It is a modular structure whose first component was launched in 1998.

As the International Space Station nears completion, the issue of Space-related Intellectual Property Rights (SIPRs) is becoming increasingly important. The partners in this adventure, the USA, Russia, Japan, Canada, and the Member States of the European Space Agency (ESA), are working together to establish a legal framework to define the rights and obligations of each of the partner states, as well as their jurisdiction and control over their ISS elements.

Experiments to be carried out on the ISS cover human physiology, biology, biotechnology, medicine, biology, science, and technology. The pharmaceutical sector in particular has been identified as an area that will benefit from experiments carried out on the ISS.

These factors raise the question of which laws apply to such experiments? For instance, if a scientist/astronaut invents a medical treatment while onboard the ISS, which patent law can be used to protect it? Also, can the use of patented inventions be protected in outer space?

The complexity of the legal regime concerning IPRs for the ISS lies in the fact that the ISS consists of different modules provided by different partners. Different IP laws from different ISS Partners can coexist; as each partner registers their flight elements and retains jurisdiction, control, and ownership over them.

In order to protect the exclusive rights of inventors, an intergovernmental agreement on the ISS was signed on 29 September 1988 by the United States of America, Japan, Canada, and ten other member states.

Article 21 of the International Space Station Intergovernmental Agreement (IGA) recognizes 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, that is in the event an invention occurs on the Space Station, ownership of invention will be determined by the ownership and registry of the Station’s element in which the invention has taken place.

For instance, if an invention is realized in a USA space element the USA Patent Act will be applicable as the invention is deemed to have occurred on US territory or for example, an invention made on a Japanese Element will be deemed to have occurred in Japan.

An invention created by an enterprise astronaut on ISS will be patented in the nation that has jurisdiction over the module where the invention took place, not the nation of the inventor.

105 of 35 U.S.C. (Inventions in Outer Space)

The USA is the only country that has enacted an explicit provision related to inventions in outer space.

The USA Patent Act (re. 35 U.S.C.§ 105(2003)) states that any invention made, used, or sold in outer space onboard a spacecraft that is under the jurisdiction or control of the USA is considered to be made, used, or sold on US territory, except where an international agreement has been concluded that states otherwise.

Apart from the USA, however, only Germany modified its patent law prior to the signing of an Intergovernmental Agreement (IGA) on the ISS, to ensure that its patent law can be applied to inventions created onboard an ESA registered module.

Apart from these two countries, the national patent laws of no other country contain provisions that would make national patent law applicable onboard a spacecraft.

Space Legislation in India

India, like most other countries, has no provisions related to space legislation.

India is a party to all international space treaties, which form the main body of international space law. India has also played a significant role to adopt legal principles by the U.N. General Assembly Resolutions, which provide for the application of international law and promotion of international cooperation and understanding in space activities.

Thus it is for the Parliament of India to take the starting step in the direction of enacting a law for India for the purpose of the effective regulation of various aspects of India’s space policy. Because of recent national and global developments, active involvement of the private sector in the country’s space program, commercialization of space activities, and the agreements made nationally and globally with various agencies, governments, international and intergovernmental organizations, there is a huge need of space laws in India.

The second most important reason for a space law in India is that having successfully demonstrated their implicational capabilities now the Indian space activities have become vastly diversified and have come to stay. Hence to facilitate inter-departmental coordination it is important to make legal norms related to space inventions.

Thirdly, there is a need to clarify applicable legal norms and rules relating to both public laws and private law aspects of space activities, as demonstrated by the experience of developed countries like the USA and Germany.

Fourthly commercialization of the space products is establishing and vast space activities and space markets where India plans to and has already begun to sell its space products.

Therefore, there is a need for India to enact a National Space Legislation as soon as possible.

Conclusion

Space provides sufficient opportunities for many joint venture programs for various innovative applications towards the cause of humankind. A harmonized system of IPR regime for outer space is needed. The harmonized system should take into account the interests of developing countries and promote moral and ethical usage of Outer Space for the benefit of the entire humanity.

About the Author: Ms. Harsha Rohatgi, Patent Associate, Khurana & Khurana, Advocates, and IP Attorneys and can be reached at harsha@khuranaandkhurana.com

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