Watch Where You Launch: Existing Space Laws Complicate Earthly IP Rights

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Crew Dragon, a NASA commissioned, SpaceX designed capsule, successfully completed the first water landing since 1975 on August 2, 2020. “Thanks for flying SpaceX,” one SpaceX engineer commented following the two-month-long trip to the International Space Station for two of NASA’s astronauts.[1] While said in jest, this comment alludes to the commercial space travel we are likely to see in the near future. With NASA delegating some responsibility for space travel to private entities like SpaceX, Boeing, and Lockheed Martin, and with global companies continuing to enter this market, questions of intellectual property rights naturally arise. Yet our current system of space law—not conceived with privatization in mind—may not provide the necessary protections.

International treaties regarding space have not been revisited since the 1980s, and none speak to intellectual property. Identifying what jurisdiction controls in these treaties is the main challenge. Given that patents are inherently territorial, the fact that jurisdiction is not clearly defined for certain space objects—both on Earth and in space—complicates the question of whether a patentee has a claim.

Imagine Company A has a valid method of use patent on a particular product. If Company B launches its own version of Company A’s product into space, then uses that product in space in a way that practices Company A’s patent, two problems arise that complicate where Company A can seek remedy for patent infringement.

One problem is the definition of “launching state” in the Registration Convention. The Registration Convention, to which the United States is a party, is the 1976 international agreement requiring that all objects launched into space be registered in the launching state of the space object. Under Article I, a launching state is defined as “(i) a State which launches or procures the launching of a space object [or] (ii) a State from whose territory or facility a space object is launched.”[2] Jurisdiction over space objects flows from their launching state, meaning that whichever country a space object is registered under has jurisdiction over everything that happens in that object. So, if both rockets are launched from the same country, i.e. the United States, then the United States clearly has jurisdiction over any legal disputes between Company A and Company B. However if the potential infringer wished to circumvent the patent, it could launch from a different country, and the launching state would not necessarily default to the country of origin. Under Article II Section 2 of the Registration Convention, the two countries would have to come to an agreement on which country would be the launching state and thus, which would have jurisdiction over the legal dispute.[3]

Another strain of the “launching state” problem derives from applying the “flag of convenience” practice of maritime law in space in which owners register their ships in a country different from their home country in order to avoid regulations and reduce costs.[4] Because the Outer Space Treaty defines jurisdiction based on registration,[5] it opens the door for the same “flag of convenience” problem for space objects. Now the infringing company, by choosing a launching state where the patentee does not have a patent, may circumvent jurisdiction. The ambiguities of the Registration Convention and the loophole in the Outer Space Treaty dilute the protection patents afford private companies.

The second problem in this scenario is the scope of jurisdiction. The Outer Space Treaty gives jurisdiction over any space objects and anyone inside the space object—including all their actions—to the launching state. According to the International Space Station Intergovernmental Agreement (IGA), modules in the International Space Station (ISS) are considered extensions of the territory of their corresponding countries on Earth, so the United States has jurisdiction over anything that happens within modules launched from the U.S.[6] This model made sense back in the 1980s and 90s when the astronauts and the spacecraft originated from the same country. However, in present-day, it only serves as another point of confusion. If astronauts from the United States use Japan’s space module in the ISS, it is unclear who gets jurisdiction over their creations.[7]

Proposed solutions naturally take an international flavor. One suggestion is to designate space as a separate jurisdiction in and of its own, such that patents registered for space carry weight on Earth regardless of territorial boundaries.[8] However to avoid questions of which country’s laws to apply—that of the patentee, the infringer, or the launching state—we would need a separate set of guidelines for patent enforcement. A second solution proposes creating a new subcommittee of the UN’s Committee on Peaceful Uses of Outer Space (COPUOS) that would be responsible for granting space patents and arbitrating any conflicts of infringement.[9] Combining these two solutions may give us a working foundation for resolving existing discrepancies and extending patent protections into space.

[1] Kenneth Chang, ‘Thanks for Flying SpaceX’: NASA Astronauts Safely Splash Down After Journey From Orbit, N.Y. Times (Aug. 2, 2020) https://www.nytimes.com/2020/08/02/science/spacex-astronauts-splashdown.html.

[2] Convention on Registration of Objects Launched into Outer Space art. 1, Jan. 14, 1975, https://www.unoosa.org/pdf/gares/ARES_29_3235E.pdf.

[3] Convention on Registration of Objects Launched into Outer Space art. 2, Jan. 14, 1975, https://www.unoosa.org/pdf/gares/ARES_29_3235E.pdf.

[4] Matthew J. Kleinman, Patent Rights and Flags of Convenience in Outer Space, Space Rev. (Feb. 7, 2011) https://www.thespacereview.com/article/1772/1.

[5] Spurthi Jonnalagadda, Eda Stark, Chris Green, Outer Space Treaty & Beyond: Do Existing Space Laws Put an Astronomical Barrier to Private IP Rights in Space? https://www.fr.com/outer-space-treaty-existing-space-laws-private-ip-rights/

[6] International Space Station Legal Framework, European Space Agency (last accessed July 23, 2020) https://www.esa.int/Science_Exploration/Human_and_Robotic_Exploration/International_Space_Station/International_Space_Station_legal_framework.

[7] Sandeepa Bhat B., Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. Space L. 1, 9 (2010)

[8] Marie Weisfeiler, Patent Law in Space, 2019 B.C. Intell. Prop. & Tech. F. 1 ,6.

[9] Juan Felipe Jimenez, Patents in Outer Space: An Approach to the Legal Framework of Future Inventions, 98 J. Pat. & Trademark Off. Soc’y 447, 459-63 (2016).

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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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