Outer Space Treaty & Beyond: Do Existing Space Laws Put an Astronomical Barrier to Private IP Rights in Space?

Fish & Richardson

Fish & Richardson

[co-author: Spurthi Jonnalagadda]

Earlier this year, DoubleTree by Hilton baked the first cookie in space.[1] Perhaps a step furthering the 1960s dream of Hilton’s Lunar Hotel,[2] the team has since brought the cookies back to Earth. The Hilton cookie experiment raises interesting questions of intellectual property rights in space. For example, does Company A with a patented method of baking a delicious space cookie have a claim against Company B that bakes a cookie in space using Company A’s patented baking method? What about inventions made in space—what protections do they have once they are brought back to Earth? Are there laws in space that govern the answers to these questions?

Our limited body of space law provides little guidance. The first international treaty, the “Outer Space Treaty,” was signed by the U.S., Russia, and the U.K. in 1967, quickly followed by the Rescue Agreement. Over the next two decades, three other treaties—the Liability Convention, the Registration Convention, and the Moon Agreement—were also signed by these nations, with most countries following in their footsteps.[3] But after that rapid succession of international treaties, there have since been few others. These five documents form the basis of the international space law we have today, but none address the issue of intellectual property rights in space. Rather, upon inspection, it appears that the stated purpose of these treaties may be antithetical to intellectual property protection.

The “Outer Space Treaty” espouses communal themes in characterizing space as the “province of all mankind,” the “common heritage of mankind” and to the “benefit of all countries.”[4] Unsurprisingly, Article II of the Outer Space Treaty prohibits any appropriation of areas in space, keeping in line with its principle of communal property.[5] On the other hand, patents are fundamentally territorial and grant monopoly rights for a period of time. Applied to space, it is unclear just what is open for patent protections.

For example, can private companies patent orbital patterns of satellites? Currently, companies may patent the technology or design of satellites that stay in a particular orbit, even if not the orbital pattern itself.[6] The practical implications of this are significant, especially with the advent of satellite constellations. If particular satellite technologies, and, indirectly, their orbital patterns, are patentable, then a significant portion of space may be occupied by one satellite constellation, i.e. one company alone.[7] Does this private apportionment of space run counter to our notions of sharing space? Some argue that the Outer Space Treaty only bans sovereign appropriation and does not limit private entities from exerting claims. Others counter that private property rights flow from sovereign property claims, so the former is meaningless without the latter.[8] So the question remains, can the stated goals of sharing outer space be reconciled with the proprietary nature of patents?

Our current corpus of space treaties comes from a period of history when space exploration was undertaken primarily by governments rather than private actors. The cooperative goals were likely a reaction to the time, as the world was coming out of a charged space race. The silence of these space treaties on intellectual property rights presents an opportunity for modern-day agreements to provide patent protections for private companies. Without robust international agreement on patents for space, we may even see less international cooperation as companies refuse to divulge their discoveries.[9] Now, as more and more private companies enter space exploration and carry the torch of innovation, it is more important than ever to strike a balance between sharing our “common heritage” and providing patent protections that incentivize invention.[10]

[1] Houston, We Have Cookies, Hilton Newsroom (Jan 23, 2020) https://newsroom.hilton.com/doubletree/news/doubletree-by-hilton-chocolate-chip-cookie-first-food-baked-in-space.

[2] Matt Novak, What Happened to Hilton’s ‘Hotel on the Moon’?, BBC Future (Nov. 18, 2014) https://www.bbc.com/future/article/20120712-where-is-hiltons-lunar-hotel#:~:text=He%20described%20the%20Lunar%20Hilton,to%20gaze%20back%20at%20earth

[3] Space Law Treaties and Principles, United Nations Office for Outer Space Affairs (last accessed July 23, 2020) http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html

[4] Sandeepa Bhat B., Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. Space L. 1, 4 (2010).

[5] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, United Nations Office for Outer Space Affairs (last accessed July 23, 2020) https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html.

[6] Becky Ferreria, How Satellite Companies Patent Their Orbits, Vice (Feb. 19, 2015) https://www.vice.com/en_us/article/pgavez/how-satellite-companies-patent-their-orbits.

[7] Rosario Avveduto, Past, Present, and Future of Intellectual Property in Space: Old Answers to New Questions, 29 Wash. Int’l L.J. 203, 239 (2019)

[8] Rosario Avveduto, Past, Present, and Future of Intellectual Property in Space: Old Answers to New Questions, 29 Wash. Int’l L.J. 203, 238-39 (2019)

[9] Ruwantissa Abeyratne, The Application of Intellectual Property Rights to Outer Space Activities, 29 J. Space L. 1, 20 (2003).

[10] Sandeepa Bhat B., Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. Space L. 1, 5 (2010).

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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