"Science soars like an eagle however law drags on like a turtle" implied by Carl Cristo in 1964. This quote is the current situation to protection laws of intellectual property.
Space technology is the most advanced technical area in the world. Outer space activities were, in fact, the start of all intellectual creations. Recently there has been an increase in intellectual property issues regarding extraterrestrial activities. The reason for the rapid growth is that most space activities are changing to private or commercially owned expeditions rather than being state-owned. The space activities are typically operated under international cooperation schemes, thus requiring a reliable and inflexible legal framework. The most pressing issue on inventions made or used in outer space in which national patent law would be applicable.
The patent protection law is subject to the specific national legal framework. Space law allows full rights and control over the object in whichever jurisdiction the space inventions is registered. Because uncertainty exists on how the domestic law of the jurisdiction would apply as there is no explicit rules and regulations an agreement, the agreement states that space invention made or used would be treated as "quasi-territory" in light of it being an Intellectual property. This article recognizes the area of patent law in outer space could prove problematic, thus exploring possible solutions for these issues.
History of Legal Regulations of Activities in Outer Space
The age of outer Space began on 4 October 1957 when the world's first artificial satellite, SPUTNIK-1 launched by the Union of Soviet Socialist Republics (USSR).
International Space Law as current consist of five space treaties:
- The Outer Space Treaty: The Moon and Celestial Bodies of 27 January 1967 i.e. treaty governing the activities of States in the Exploration and Use of Outer Space. This treaty was adopted by the General Assembly vide Resolution 2222 XXI, which was open for signature in January 1967 and finally came into force on 10 October 1967. Some basic framework with regards to the international space law under this treaty is as follows:
- The use and study of outer space must be carried out in the interest and benefit of all countries coupled with being a province of all mankind;
- The exploration shall be free for use and exploration by all States;
- States shall not place weapons of mass destruction or nuclear weapons on celestial bodies or in the orbit in any manner;
- States to be liable for any damage caused by their space objects;
- States to ensure that there should be no harmful contamination of celestial bodies or space, etc.
- The Rescue Agreement of 22 April 1986 i.e. Rescue of Astronauts, the return of Objects. This agreement was adopted by the General Assembly vide Resolution 2345 XXII, which was open for signature in April 1968 and finally came into force on 03 December 1968. This agreement essentially provides that all steps to rescue and help astronauts in distress. Additionally, the state must promptly pave way for their return to the launching state. Further, upon request, the states shall also assist launching states in order to recover space objects that have returned outside the territory of such state.
- The Liability Convention of 29 March 1972 i.e. Convention on International Liability for Damage caused by space objects). It was adopted vide Resolution 2777 XXVI which was open for signature in March 1972 and came into force in September 1972. Under the Liability Convention, it clearly provides that the state shall be liable for defrayal of damages that are caused by its space objects to the aircraft of the surface of the Earth. Additionally, the state shall also be liable for any damage due to the state’s fault in space.
- The Registration Convention of 14 January 1957 i.e. Registration of Objects Launched into Outer Space. It was adopted vide Resolution 3235 XXIX which was open for signature in January 1975 and came into force in September 1976. This convention essentially addresses the issues which are related to States Parties’ responsibilities with regards to their space objects. Therefore, the Secretary-General was required to main a register whilst ensuring its open and full access to the information therein which is provided by the international intergovernmental organizations and the states.
- The Moon Agreement of 18 December 1979 i.e. Governing all Activities on the moon or other Celestial Bodies). It was adopted vide Resolution 34/68 which was open for signature in December 1979 and entered into force in July 1984. This agreement encompasses that celestial bodies and moon should be used exclusively for peaceful purposes. Additionally, their environment must not be disrupted. Further, the United Nations should be informed with regards to the purpose and location of any station which are established on such bodies.
The five legal principles and declarations with regards to outer space are as follows:
- The Declaration of Legal Principles of December 1963: Adopted by the General Assembly vide Resolution 1962 XVIII;
- The Broadcasting Principles of December 1982: Adopted by the General Assembly vide Resolution 3/92;
- The Remote Sensing Principle of December 1986: Adopted by the General Assembly vide Resolution 41/65;
- The Nuclear Power Sources Principles of December 1992: Adopted by the General Assembly vide Resolution 47/68;
- The Benefits Declaration of December 1996: Adopted by the General Assembly vide Resolution 51/122.
The Challenges for Patents in Outer Space
Virginia Galactica launched its first successful flight into space on 18 December 2018. The Virginia Galactica invention made on earth for Outer Space indicates how technology is forever evolving. Virginia Galactica is only one example of an invention created on earth. The Solar Panels in the International Space Station (ISS) is another example.
One other issue related to Article 5 of Paris Convention The Paris Convention on Protection of Industrial Property, provides certain limitations of rights (exclusive) conferred by a patent in the interest of the public in order to guarantee freedom of transport. This convention was adopted in 1883 which applies to industrial property in its widest sense, including trademarks, utility modes, patents, geographical indications, trade names as well as repression of unfair competition. Now, the question which remains is whether the doctrine of temporary presence (freedom of transport) applies to space objects? For example, considering the transport of patented articles from or to a certain space station through, say a launching site in a foreign country.
Patenting Space Related Inventions
The United States, Japan, Canada, Russia and the Member States of European Space Agency, are working together to establish the legal framework in order to define the rights and obligations of each of state, as well as their jurisdiction and control over their International Space Station Intergovernmental Agreement, 29 January 1998.
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. With the significant financial investment required to break into the market, inventors need to know their legal rights in space. In particular, establishing space patent jurisdiction, liability, and duty to enforce would provide certainty and encourage exploration. Setting patent law in space would prevent space companies from gaining an advantage based on their country of registration.
Solutions worth considering:
The journal of Patent and Trademark Office Society 98 explore the option of creating a ‘Space Patent’ regime that would be administered by the United Nations Committee on the Peaceful uses of Outer Space; working alongside the Scientific, Technical and Legal subcommittee. The new committee for Space Patent will handle registration after receiving and assessing the patent. The committee will be able to handle any disputes arising from the patent with the support of the legal subcommittee; as an arbitration centre. This will require the need for the Space Treaty to be modified. Although there is still some criticism surrounding the “Space Patent” regime. Not being politically feasible is the main criticism on the suggested scheme, as every country might claim that their legislation should be included in the legal framework.
Another solution is mentioned by the WIPO proposing a universal patent law and a corresponding space patent jurisdiction. This method would establish space as its own territory for patent rights with a separate jurisdiction to create and enforce patents. Inventors would file one patent application that would be universally enforceable and protectable throughout space.
Although WIPO has not yet identified a governing body for this system, the primary advantage is that this system provides greater protections to inventors by creating uniform rules and closing the loophole that allows companies to infringe on patents only by their country of registration. Furthermore, a uniform system simplifies and clarifies the patenting process by requiring inventors to file only one patent application, instead of a separate application for each country in which they want to enforce their rights. A significant obstacle to the creation of a space patent jurisdiction, however, is the traditional unwillingness of states to part with their sovereignty to give power to an international governing organization.
The current status of international space law lacks patent protection in space. One proposed solution, from WIPO, is creating a single patent application and jurisdiction that a governing organization will enforce universally for all patents in space. The other proposed solution is the patent law regime, which should be considered as a valuable and reliable type of solution. Financial input from the private sector into Outer Space inventions will be beneficial for the future development of space activities. The idea of Outer Space is attracting more capital from private companies; therefore, intellectual property protection will become vital in inventions made or used in Outer Space.
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