Galactic Patents: Legal Complexities of Protecting Patents for Extra-terrestrial Instruments
Contributor: Aaditya Bajpai
The perspective of operations in outer space has seen a metamorphosis, with its main focus evolving from governmental monopoly and patriotic pride to commercialization by private businesses. Now decades after the first flight into outer space, the entirety of the cosmos has been subjected to a major evolution, specifically with regards to the regulatory regime. One of the biggest complexities which has been apparent in the legal regime has been with regards to the patents surrounding space instruments.
However, patenting an innovation is pertinent if the innovation qualifies the criteria so specified in the IP laws of a particular nation. However, the issue with the same itself is that the current World IP regime is heavily inclined towards the issue of nationality or territoriality. Therefore, through this article, the author has tried to analyse the said conundrum with the approach of suggesting potential solutions because it is after all the national laws and doctrines that have always been applied to issues of IP, however, the shall the same exist in the realm of outer space as well?
Patents in The Cosmos: The Issue’s Origin
The legal frameworks for outer space and patents vary significantly. Space law focuses on the commons, whereas patents offer exclusive private rights to innovators. Space is seen as humanity’s collective inheritance, and actions should benefit all countries. The disagreement between these two legal systems stems from this issue. Space cannot be split into natural or artificial limits, unlike regions governed by nation governments. This is one of the reasons for the difference. The outer space is subjected to the doctrine of res communis omnium, which means no state shall assert sovereignty over the space resources, as the same forms part of global commons, i.e., equally available to all. Hence, when it comes to private interests surrounding their inventions, if the same is subjected to such laws of space, then that acts as a detriment to the R&D of the private businesses, who then assert that it is their own exclusive right. Sajal Sharma & Shashank Pathak, Patenting of Outer Space Inventions: In The Crossroads Of Territorial And Outer Space Law, DNLU Law Review 176.
The Territorial Dilemma
The territorial dilemma is the crux of the issues. IP laws are national laws subjecting themselves to a particular determined territory. The US Supreme Court for example, in the Brown v Duchesne case, held that an innovation patented in the US shall not be said to have been infringed if the same was used outside the territory of US. The Court held that it lacked personal jurisdiction over a foreign vessel on the high seas or in res communes. This was because the space is, pursuant to article I of the OST, a part of the global commons. A legal regime of intellectual property in space is hindered by this contradiction, which makes its development and execution impossible. If an infringement of an intellectual property right registered on Earth occurs in space, it gives rise to a jurisdictional mistake. In such circumstances, the current legal structure is ill-equipped to even address the acquisition, much less the enforcement and protection, of intellectual property.
Consider the following example: if an invention defines how to run a heating module, it is hard to detect an infringement unless someone is physically present on the space object where the method is being used. As a result, keeping track of patent infringement in space is a significant hassle. Consider what might happen if the spacecraft never returned to Earth, even if it was successfully detected. Earth is the only location where remedial action may be performed. There would be no way to resolve the matter if the spacecraft returned to a country different than the one in which it was registered. Hence, the ultimate question is, what next when the space instrument reaches the orbit.
Flags of Convenience – A Solution or An Extended Problem?
The point of similarity between the law of the seas and the laws of outer space is that both are grounded on the principle of res communis omnium. However, a customary practice in the law of the seas is that of the “Flags of Convenience” wherein the law of the seas provides vessels with the option of subjecting themselves to the jurisdiction of a nation that may be distinct from their place of origin or economic activity. The widespread adoption of this practice in the maritime sector is readily explicable. The reasons encompass marginal registration costs, various tax benefits, circumventing burdensome compliance regulations, evading stringent environmental standards, and more.
On earth, typically, patents be filed exclusively in nations with high demand for the patented technology. Once an item enters space, it is no longer within the purview of any particular patent jurisdiction or market on Earth. Therefore, businesses will have to go through the time-consuming and potentially costly procedure of applying for patent protection in every nation where a competitor space object is filed. If a corporation doesn’t manage to get patent protection in every single country, or if a country becomes registerable after the invention has been made public (for example, due to earlier patent filings), rivals might potentially exploit flags of convenience to get around the company’s patents.
An effort was made to inculcate the flags of convenience strategy into the space domain, when in 1975 the Convention on the Registration of Objects Launched into Outer Space (hereinafter referred to as the Registration Convention) was formulated. The necessity was to register the space object, and this mandate rested on the “launching state”. Now, the enterprise may possibly choose an outer space flag of convenience by forming its business or launching its aircraft from the preferred nation.
As much convenient as the name suggests, the ground reality is different. When it comes to maritime laws, all the vessels carrying the cargo transport it from one place to another, i.e., there is always a distinct destination place, whose laws could be subjected upon the said vessel.
However, when it comes to space, there is no destination state with its own patent laws. In this situation, if a person or entity that owns a patent wants to prevent a competitor from using the patented invention on the competitor’s spacecraft, they must depend on the legal regulations of the country where the spacecraft is officially registered. If the patent is not registered or is unenforceable in that country, the patent holder is essentially unable to protect its innovation.
It is believed that commercial space operations would soon go from being heavily monitored to becoming routine. Space companies can set up business in whatever country they choose, and with the right technology, they may even be able to launch a spacecraft from any country on Earth in the future. The patent system may become quite ineffective at protecting ideas for usage in space if the flags of convenience method is employed.
Fixing The Gap: The Way Forward
To establish a human population on other planets, the persistent endeavour of commercialization and privatization of space will persist unhindered. Private entities in spacefaring countries are becoming more involved in space operations as they recognise the potential for financial gain. This engagement results in greater intellectual curiosity and ultimately the development of fresh innovations. Private space research and space operations are at the forefront of innovation, necessitating a more efficient intellectual property apparatus.
A solution to the inconvenience caused by the flags of convenience as described before shall be the establishment of a new multinational patent jurisdiction for filing and enforcing patents in outer space. A 2004 assessment by the World Intellectual Property Organisation (WIPO) asserted that creating a single territory with a universal enforcement agency and uniform rules would be the best way to resolve legal uncertainties surrounding intellectual property protection in the space domain. This would include the actual space realm and all of its parts, such as launch pads and spacecraft. This technique eliminates the need for space technology companies to file a patent in each possible launching state. Furthermore, regardless of where
To establish a human population on other planets, the persistent endeavour of commercialization and privatization of space will persist unhindered. Private entities in spacefaring countries are becoming more involved in space operations as they recognise the potential for financial gain. This engagement results in greater intellectual curiosity and ultimately the development of fresh innovations. Private space research and space operations are at the forefront of innovation, necessitating a more efficient intellectual property apparatus.
A solution to the inconvenience caused by the flags of convenience as described before shall be the establishment of a new multinational patent jurisdiction for filing and enforcing patents in outer space. A 2004 assessment by the World Intellectual Property Organisation (WIPO) asserted that creating a single territory with a universal enforcement agency and uniform rules would be the best way to resolve legal uncertainties surrounding intellectual property protection in the space domain. This would include the actual space realm and all of its parts, such as launch pads and spacecraft. This technique eliminates the need for space technology companies to file a patent in each possible launching state. Furthermore, regardless of where
