PATENTS IN THE FIELD OF OUTER SPACE

INTRODUCTION
Launch of the world’s first satellite way back in 1957 by Russia marked the birth of the Space
Exploration or the Space Age.i President John F. Kennedy on September 12, 1962, almost 4
years after the Russians successfully launched their manned satellite Sputnik into earth’s orbit,
declared “We choose to go to the moon”. This speech launched the United States and Russian
into a 17 year space race. While both nations pushed themselves to prove their scientific
superiority, it became clear that legislation would be needed to mediate actions in the space
surrounding our planet and its celestial bodies.

In 1959 the UN took precedent in guiding this legislation and established the United Nations
Committee on the Peaceful Uses of Outer Space (UNCOPUOS) for negotiating agreements
relating to outer space. There are officially five international treaties negotiated and drafted by
the UNCOPUOS: (1) The Outer Space Treaty of 1967, (2) The Rescue Agreement of 1968, (3)
The Liability Convention of 1972, (4) The Registration Convention of 1975 and (5) The Moon
Agreements of 1979.

Though disappointing, but none of these agreements contain provisions expressly dealing with
intellectual property rights.ii

WHOSE TERRITORY IS SPACE?iii

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.

The 1979, Moon Treaty was the first piece of legislation which dealt with the question of “who
owns space”. The treaty states that “All activities on the moon, including its exploration and use,
shall be carried out in accordance with international law, in particular the Charter of the United
Nations…”iv
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 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. It is a treaty that forms the basis of
international space law.v Further Article II states that the Outer Space is not subject to national
appropriation by claim of sovereignty. And hence, the Outer Space belongs to all and is open for
exploration by all. 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.vi 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.

THE NEED FOR IPR IN OUTER SPACE

Despite the fact that space technology has long been one of the most advanced technical areas in
the world, and outer space activities in fact are the fruit of intellectual creations, it is only in
recent years that intellectual property issues have begun to be raised in connection with
extraterrestrial activities. Some of the reasons for this are that space activities are increasingly
shifting from being state-owned activities to becoming private and commercial activities.
Moreover, an increasing number of space activities are operated under international cooperation
schemes, which depend on a simple, uniform and reliable international legal framework.vii

In order to examine the importance of IPR in outer space activities let us take the example
of Remote Sensing Satellites, which take imageries of Earth from outer space and send it back to
the satellite stations established on earth for various purposes. These imageries are called Earth
Observation Data or Spatial Data. The entire process is a fruit of intellectual creation of the
human mind and thus falls under the ambit of IP.

Patent: The entire technological process applied for collecting the raw data from the Outer
Space using Remote Sensing Satellite is patented as an invention. The technique and technology
used is unique and different in every remote sensing satellite and is thus patentable. As far as
patent law for outer space is concerned, problems occur when an invention is used or infringed in
outer space. The national patent laws are applicable only within the territory of the respective
State which excludes the extraterritorial domain of outer space.
Copyright: The raw data gathered by these satellites as such holds no copyright value. But
copyright subsists in the final processed or value added data created after disseminating the raw
spatial data. The imageries sent by these Remote Sensing Satellites are used in weather forecast,
environmental monitoring, terrain mapping, etc. and embrace a great deal of copyright value. In
the copyright laws of most countries, the threshold of originality that is required to qualify for
copyright protection differs. This would imply that a particular kind of spatial database may be
granted copyright protection in some countries, but a similar data would not qualify for copyright
protection in other countries.
Pertaining to India, as per the provisions of the Copyright Act, 1957, it will be a difficult task to
establish the real author of such spatial data collected by Remote Sensing Satellite, a machine
that does not involve any human intervention, unlike other literary work creations.viii

ISSUES
The long-term presence of astronauts in this unique research environment that is in outer space,
provides the perfect opportunity for them to create inventions eligible for patent protection.
Experiments which are carried out on the international space station covers human physiology,
medicine, biology, science and technology. The pharmaceutical sector in particular has been
identified as an area that will benefit from experiments which are carried out on the international
space station.

These factors raise a question that which laws will govern such experiments? For instance, if a
scientist or an astronaut invents a medical cure or treatment while on board the international
space station, which patent law can be used to protect it? At the same time, can an inventor be
protected against the unauthorized use of a patented invention made in outer space?

In principle, patents are enforceable only within the territory of the country designated. Outer
space, like the high seas and Antarctica, is not subject to national appropriation and does not fall
under any national sovereignty, therefore, it can’t be appropriated by use, claim or any other
means.ix With regard to the applicability of national patent regulations, problems occur when an
invention is used or infringed in outer space, because such regulations are applicable only on the
territory of the specified state which, by definition, excludes the extraterritorial domain of outer
space.

The USA is the only country that has enacted an explicit provisionx related to inventions in outer
space. Apart from the USA, only Germany has modified its patent law prior to the signing of an
Intergovernmental Agreement on the international space station, to make sure that its patent law
can be applied to inventions which are created on board. The national patent laws of no other
country except these two contain provisions that would make national patent law applicable on
board a spacecraft.

Nonetheless, a state does retain jurisdiction and control over objects it sends into outer space.xi
Therefore, the simple solution to this legal gap would be to make patent law enforceable for
objects in space.

As regards inventions made or used in outer space, the issue which is frequently raised, is the
applicability of national patent law in outer space. According to international space law, the state
in which the space object is registered retains jurisdiction and control over that space object. The
question arises as to whether the territorial jurisdiction under intellectual property law permits
the extension of each national law to the objects which the respective country has registered and
launched into outer space. In the absence of explicit international rules, under a number of
international agreements concluded with respect to international space projects, registered space
objects are treated as quasi-territory for the purposes of intellectual property.

For example Zero Gravity Solutions Inc. is one company that is conducting research in the
international space station for commercial purposes. Some of their most promising research is in
microgravity planting, an industry already riddled with controversy over the ability to patent
living organisms. Under terrestrial law, Zero Gravity would have rights to their plant patents for
20 years at moment of discovery. However according to space law, Zero Gravity Solutions only
have a patents protecting them for 5 years. Some discoveries are made in space, where space law
takes precedent. The confusion begins when this data is either transmitted back to earth or
experiments are transported back to earth. Although the majority of an experiment took place in
space, does space law still govern if the data is complied on the ground?

As prescribed in Articles I and II of the Outer Space Treaty, the exploration and use of outer
space for the benefit of mankind and the non-appropriation of outer space by any nation are
fundamental principles under international space law. While recognizing the importance of
intellectual property for the exploration of outer space and the further development of science
and technology, questions have been raised as to whether the protection and enforcement of
intellectual property rights may conflict with the said fundamental principles in terms of access
to knowledge and information derived from space activities and in terms of the freedom of
exploration and use of outer space.

Another issue relates to the interpretation of Article 5ter of the Paris Convention for the
Protection of Industrial Property, which provides for certain limitations of the exclusive rights
conferred by a patent in the public interest in order to guarantee the freedom of transport
(doctrine of temporary presence). The question is then whether the doctrine of temporary
presence also applies to space objects, for example, in the case of the transport of patented
articles to or from a Space Station through a launching site in a foreign country.xii

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. Due to
recent national and global developments, active involvement of the private sector in country's
space programme, commercialisation of space activities and the agreements made nationally and
globally with various agencies, governments, international and intergovernmental organisations,
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 norm 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 USA and Germany.

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

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

CONCLUSION
Space gives adequate opportunities for many joint venture programmes for various innovative
applications towards the cause of human kind. 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.xiv It is expected that technical and financial input from the private
sector will become more important in the future progress of space activities. Although a number
of public policy tools can be projected to attract the participation of the private sector, protection
of intellectual property will play an important role in emerging successful space business models
concerning public or private collaborations.xv

Outer space activities have always been categorized by high-tech inventions and advanced
science but the recognition of intellectual property with respect to these activities is of a recent
origin. Many countries like India, have not enacted any space legislation, nor do they have any
provisions dealing with outer space activities in its domestic intellectual property regime.xvi

Having said that the major problem to reconcile the intellectual property and space law is that the
Space law is a part of international law and therefore is uniform and same for all countries,
whereas every country has its own intellectual property regime. Thus, there is a lack of legal
certainty and single uniform law in the field of Space intellectual property. With law comes
enforcement machinery, which is also presently lacking with respect to Space intellectual
property issues.xvii

With states drastically relaxing their monopoly over space exploration and activities, private
entities have now become interested in space investments and research. The possibility of
conflicts can arise when two patents from two nations cover the same invention out of scientific
experiments in outer space. Considering the exorbitant expenses which are involved in space
activities, lacking in a coordinated patent regime specially designed for the environment of outer
space will let many potential interested private entities down and thus will drive them away from
this field.

Terrestrial laws will constantly be undecided between the international community because
space and celestial bodies are not “possessed” by one particular power. I think the solution lies in
the formation of an international extraterrestrial patent filing system. There should be an
international committee responsible for the filing of space patents, instead of conforming to
NASA regulations. The moral responsibility of space discovery is placed on all of humanity and
individual governments should not be allowed to “own” pieces of the final frontier.

i
http://www.selvamandselvam.in/blog/outer-space-and-intellectual-property-rights/
ii
http://www.selvamandselvam.in/blog/outer-space-and-intellectual-property-rights/
iii
http://www.mondaq.com/india/x/361228/Patents+In+The+Field+Of+Outer+Space
iv
Article 2, Agreement Governing the Activities of States on the Moon and other Celestial Bodies
United Nations Office for Outer Space Affairs
v
Article I
vi
http://www.esa.int/About_Us/Law_at_ESA/Intellectual_Property_Rights/Patents_and_space-related_inventions
vii
http://www.wipo.int/patents/en/topics/outer_space.html
viii
http://www.selvamandselvam.in/blog/outer-space-and-intellectual-property-rights/
ix
(re. Outer Space Treaty, Art. 2, 1967).
x
The USA Patent Act (re. 35 U.S.C.§ 105(2003)) states that any invention made, used or sold in outer space on
board 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.
xi
re. Outer Space Treaty, Art. 8, 1967)
xii
http://www.wipo.int/patents/en/topics/outer_space.html
xiii
http://www.mondaq.com/india/x/361228/Patents+In+The+Field+Of+Outer+Space
xiv
https://iiprd.wordpress.com/2014/10/22/patents-in-the-field-of-outer
space/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=View-Original
xv
http://www.wipo.int/patents/en/topics/outer_space.html
xvi
Leo B. Malagar, Marlo Apalisok Magdoza-Malagar, INTERNATIONAL LAW OF OUTER SPACE AND
THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS, 17 Boston University International law
Journal, 311, 1999
xvii
http://www.selvamandselvam.in/blog/outer-space-and-intellectual-property-rights/