Space Patents: Intellectual Property in Outer Space

1. Space Patents: Intellectual Property in Outer Space Presented at the 8th Mars Society Convention By Bryan E. Erickson Gary C. Fisher GaryCFisher@comcast.net Mars Society Steering Committee Mars Foundation, Treasurer & Design Team Mars Society Convention

2. Space Patents: Intellectual Property in Outer Space What is a Space Patent? • A special patent issued by a branch of a terrestrial Patent Office - possibly by a Space Patent Office created explicitly for the purpose. • A space patent would extend, in an orderly manner, intellectual property (IP) protection to outer space.

3. Space Patents: Intellectual Property in Outer Space Why do we need space patents? • Patents create incentives to invest in new technologies. • Patents apply only in the geographical territory of the issuing nation. • Space lies outside the jurisdiction of any nation. • Technologies particularly useful in space are therefore left out of the investment incentives of a patent system.

4. Space Patents: Intellectual Property in Outer Space What is the current situation? • U.S. patent law explicitly extends to any space object or component under the jurisdiction or control of the United States But only Unless otherwise provide for by international treaty. 35 U.S.C. §105 “Inventions in outer space” • All ISS partner nations have similar provisions that are encoded in the ISS IGA. • U.S. patent law provides for itself to be superseded by an international treaty in space.

5. Space Patents: Intellectual Property in Outer Space Therefore! • A Space Patent Treaty could fulfill the invitation supplied by U.S. patent law for a new regime of patent protection in space. • One agreed to by multiple nations in the mode o the Space Station agreement.

6. Space Patents: Intellectual Property in Outer Space The ISS Situation • National patent laws have been extended beyond national geography to apply to spacecraft or components according to which nation has jurisdiction or control over the spacecraft or component. • However, this means one nation’s patent laws ends and another’s begins from one component of the ISS to another.

7. Space Patents: Intellectual Property in Outer Space This is a problem because… • Leaves room for much uncertainty and conflicts of interpretation regarding what nation “controls” a space object. • Especially with privately, built, launched, and owned space objects. • It has uncertain application to planetary bodies, which are not subject to claims of national sovereignty under the Outer Space Treaty.

8. Space Patents: Intellectual Property in Outer Space Leaving an IP law vacuum in space which… A Space Patent Treaty could eliminate by… • Returning to the “natural” concept of space as geographically separate from Earthbound nations. • By agreeing on a single system to apply to space and other planetary bodies,n to which the signatories of the treaty are bound in lieu of their national patent laws. Space patents would be the only recognized patents in space.

9. Space Patents: Intellectual Property in Outer Space This would resolve: • Any conflicting patent claims where two patents from two nations cover essentially the same technology. (a not infrequent occurance) • Copycats that shop around for a nation where the inventor does not have a patent, and build ad launch and otherwise infringing item. • Inventors incurring the expense of acquiring patent protection from multiple nations.

10. Space Patents: Intellectual Property in Outer Space The Space Patent Treaty: • Establish a Space Patent Office to examine applications and issue patents. • Would follow the Patent Cooperation Treaty to provide priority of claims. • Could be a modification of the Patent Cooperation Treaty to recognize the priority of claims for applications filed with the Space Patent Office. • Be a testbed for the long-running international effort to harmonize the Earth’s patent laws.

11. Space Patents: Intellectual Property in Outer Space Scope of Space Patents: • Apply geographically throughout all of space above the limit of space above the Earth (100 km above mean sea level?). • Would grant the owner a period of IP protection on all use of their invention in space, or anywhere off of Earth for citizens of signatory nations. • Permits the inventor to separate the terrestrial and extraterrestrial protection of their inventions.

12. Space Patents: Intellectual Property in Outer Space Scope of Space Patents: • These rights may be transferred, sold, or licensed, independently of a national patent. • The space patent owner or licensee would have the right to manufacture a product incorporating the patent on Earth, even if they do not have terrestrial patent rights – provided the eventual use of the product is in space. • The period of patent protection might be delayed until the first use of the invention in space.

13. Space Patents: Intellectual Property in Outer Space Some Issues: • There are some half-dozen dissenters to the idea that national jurisdiction ends at the boundary with space. These are poor nations near the equator that claim theirs extends to GEO (to demand rent for satellites in their sovereign trench.) • It would be helpful to focus the attention of all nations on the value of a space patent treaty, for example, by tying it to a more comprehensive treaty – WTO GATT-TRIPS.

14. Space Patents: Intellectual Property in Outer Space Some Issues: • What conditions to apply: New, Useful, and Unobvious (US) Novel, Manifesting an inventive step, and Having and industrial applicaility (Other nations). • Grace period after initial public use or disclosure befor allowing a patent application to be filed? • Retroactive application? (Bad idea)

15. Space Patents: Intellectual Property in Outer Space Some Issues: • Create the Space Patent Office under the auspices of the UN or EU or as a newly minted entity in the mold of the EPO, ESA, and IGA? or • Created as an outgrowth of the three largest patent offices: U.S. Patent & Trademark Office, the European Patent Office, and the Japanese Patent Office? or • Privately owned and run enterprise?

16. Space Patents: Intellectual Property in Outer Space Some Issues: • How would a newly minted nation in space interface with the Space Patent system? • The First Use Principle: No U.S. patent law requirement to use the patented invention or even make a working model. Some European (and Canada’s) patent law systems require making significant commercial use within a period of years or lose the full extent of protections.

17. Space Patents: Intellectual Property in Outer Space Some Issues: • Relativistic Effects?

18. Space Patents: Intellectual Property in Outer Space CONCLUSION A space patent treaty is already openly called for in U.S. patent law; and has the strong potential to boost private investment in the technologies that will provide us with ever greater capabilities to explore and settle space.