Extra-terrestrial patent infringement

14 December 2015

Space technology is advancing rapidly and human activity in outer space is more common than ever before. This means patent protection of space technology is becoming an increasingly significant issue.

A patent is a territorial right, meaning that it applies only to the territory – including the air space – in which the patent is granted. But, given this, can a patent be used as protection for an invention whose commercial exploitation requires that it is made, used or sold in outer space?

This is becoming an increasingly important question as we see human space activity on the rise, with ever greater presence and research aboard space stations, more and more satellites, and the increased opportunity of space tourism with companies such as Virgin Galactic. Therefore, the question to ask is, “Whose territory is space?”

Astronaut

The Outer Space Treaty of 1967 (Article 8) states: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object… while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.” Therefore, it could be argued that the patent law of the state in which the space object was registered and from which it was launched applies to an invention that is subsequently made, used or sold on that space object.

Interestingly, U.S. patent law has an explicit provision along these lines for inventions in outer space under Title 35, Section 105 of the U.S. Code: “Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States.”

This suggests that unauthorised manufacture, use or sale of a patented invention on a space object under the jurisdiction of the United States will be treated as if it were an infringement under U.S. patent law. After all, when a space object is launched into Earth orbit or beyond, the launching state must register the space object and so the jurisdiction of the space object would be retrievable. There even exists a provision for cases where there are two or more launching states of a space object under the U.N. Convention on Registration of Objects Launched into Outer Space, which states: “Where there are two or more launching States in respect of any such object, they shall jointly determine which one of them shall register the object.”

However, the United States seems to be alone in providing an explicit provision for inventions in outer space. Most other jurisdictions do not currently have any such provisions, and there still remains some uncertainty as to whether an inventor can be protected against the unauthorised use of a patented invention in outer space.

It’s also worth considering, that the possibility of enforcing patents in outer space will pose a serious challenge for the space sector where the freedom of action in space is important for the future of exploration and discovery. In fact, it will conflict with the fundamental principles for space activities prescribed in Article I of the Outer Space Treaty of 1967: “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States… in accordance with international law… There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.”

In any case, how easy is it to detect patent infringement in outer space? How can patentees even prove infringement of their patented inventions if that infringement is use of a patented product or process only occurring in space?

On Earth, a patentee can become aware of infringing activities by third party marketing or sales campaigns or by seizing infringing products for analysis. The same detection is not possible in outer space, which makes enforcement that much more difficult, if not impossible.

After all, in space, no one can hear you scream “patent infringement!”

Lisa Williams

Lisa Williams

Partner

Our Expert
Lisa Williams
Lisa Williams
Location: Bristol (UK) The Netherlands (NL)

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