Welcome back to Legal Geek. This week, we review an interesting question about intellectual property rights as they apply in space. Is (INSERT Kirk - "Space...The Final Frontier") of IP rights?
Patent systems are designed to reward advances in the scientific fields by granting a limited-term monopoly in exchange for full disclosure of your invention and how to practice it. After the 15 or 20 year term expires, an invention then goes into the public domain for others to freely use, thereby advancing the arts and sciences over time.
It makes sense that these incentives for securing patents are particularly valuable in fields with huge upfront costs of development, like biopharmaceuticals. In other fields like software, it can be much easier to innovate or design around, and as such, those fields do not find patents to be as much of an incentive. But one field with huge upfront costs of development does not fit into this mold, and that is space-related tech. The reason for this may not be immediately apparent, but let's explain why this is the case here.
Patents are granted on a national or regional basis, meaning the monopoly rights you get are limited to the territories where you apply for and obtain the patent. Although plenty of laws apply to outer space, there are massive loopholes thanks to the territorialism of patent systems that could potentially allow infringers to successfully avoid any patent infringement claims on space tech that is patented in one or more countries on Earth.
Interestingly, the U.S. has been on the cutting edge of trying to make sure whatever patent rights it grants are enforceable as broadly as possible, including in space. To this end, since a 1972 Supreme Court decision that restricted infringement claims against exporters of components that are assembled overseas into an infringing product, Congress and the Supreme Court have made and interpreted many laws in such a manner to expand the reach of potential infringement claims to actions in other countries. One of these is 35 U.S. Code Section 105(a), which states that U.S. patents extend coverage to any space object or component thereof under the jurisdiction or control of the U.S.
However, one huge loophole to this is that U.S. law cannot apply to any space object that is carried on the registry of a foreign state. This is the same as maritime law that applies to ships at sea, depending on what country they are registered in. Thus, a potential infringing U.S. company could make a device that infringes a U.S. patent if they do so in a spacecraft registered under another country. Indeed, even launching such a spacecraft from the U.S. may not lead to liability for patent infringement if the infringing item is merely temporarily passing through the country on the way to space.
Considering that a lot of development of space tech occurs in shared spaces like the International Space Station, it seems silly that different sets of patent rules would apply depending on whether you are in the U.S. module, or the Russian module, or the European module of the ISS. This international cooperation and shared space is not likely to go away anytime soon, leaving the patent reach into space unclear at best.
It makes sense that these incentives for securing patents are particularly valuable in fields with huge upfront costs of development, like biopharmaceuticals. In other fields like software, it can be much easier to innovate or design around, and as such, those fields do not find patents to be as much of an incentive. But one field with huge upfront costs of development does not fit into this mold, and that is space-related tech. The reason for this may not be immediately apparent, but let's explain why this is the case here.
Patents are granted on a national or regional basis, meaning the monopoly rights you get are limited to the territories where you apply for and obtain the patent. Although plenty of laws apply to outer space, there are massive loopholes thanks to the territorialism of patent systems that could potentially allow infringers to successfully avoid any patent infringement claims on space tech that is patented in one or more countries on Earth.
Interestingly, the U.S. has been on the cutting edge of trying to make sure whatever patent rights it grants are enforceable as broadly as possible, including in space. To this end, since a 1972 Supreme Court decision that restricted infringement claims against exporters of components that are assembled overseas into an infringing product, Congress and the Supreme Court have made and interpreted many laws in such a manner to expand the reach of potential infringement claims to actions in other countries. One of these is 35 U.S. Code Section 105(a), which states that U.S. patents extend coverage to any space object or component thereof under the jurisdiction or control of the U.S.
However, one huge loophole to this is that U.S. law cannot apply to any space object that is carried on the registry of a foreign state. This is the same as maritime law that applies to ships at sea, depending on what country they are registered in. Thus, a potential infringing U.S. company could make a device that infringes a U.S. patent if they do so in a spacecraft registered under another country. Indeed, even launching such a spacecraft from the U.S. may not lead to liability for patent infringement if the infringing item is merely temporarily passing through the country on the way to space.
Considering that a lot of development of space tech occurs in shared spaces like the International Space Station, it seems silly that different sets of patent rules would apply depending on whether you are in the U.S. module, or the Russian module, or the European module of the ISS. This international cooperation and shared space is not likely to go away anytime soon, leaving the patent reach into space unclear at best.
The Bottom Line is, space tech is one of the types of technology most ripe for the benefits of patent protection. But unless international laws and treaties are formed that clarify how the territorial patent systems work in space, there will be tons of loopholes and exceptions that make it impossible to really enforce your patents rights in space. For patents to viably reach the final frontier, they will have to boldly go where no patent law has successfully gone before. It's an interesting conundrum for the future as we continue to spread beyond the realm of Earth.
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