IP and Space Activities

“Space, the final frontier…”

For quite some time, space was out of our reach. Today, space technology has become increasingly advanced and developments in this field have resulted in the formation of laws governing outer space and intellectual property rights.

Despite the fact that space technology has long been one of the most advanced technical areas in the world, it is only in recent years that intellectual property issues have begun to arise 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 (Space Exploration Technologies Corp, popularly known as Space X, founded by Elon Musk in the USA in 2002, is a great example). Further, an increasing number of space activities are operated under international cooperation schemes, which depend on a uniform and reliable international legal framework.

Like almost every other innovation, space-related inventions could benefit from protection from the following main IPRs:

• Inventions can be protected through patents when they qualify;
• Utility models, where available, could also apply to minor inventions;
• The inventor can trademark the creations' names and related logos (think of Elon Musk’s company);
• Trade secrets will probably play an important role in protecting important advancements and confidential business information in this field.

As regards inventions made and/or used in outer space, the question that arises is: can we apply national/regional IPR law in outer space? While IPR protection is subject to the principle of territoriality, according to international space law, the state in which the space object is registered retains jurisdiction and control over that space object.

According to the above, could we infer that the territorial jurisdiction under IP 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, and according to a number of international agreements on collaborative space programs, registered space objects are treated as quasi-territory for the purposes of intellectual property.

As prescribed in Articles I and II of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty) (https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html), 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 IP and innovation are of paramount importance 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 these fundamental principles.

Another issue relates to the interpretation of Article 5ter of the Paris Convention for the Protection of Industrial Property (https://www.wipo.int/treaties/en/ip/paris/), 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). Can we extend this doctrine to space vehicles and objects?

Technical and financial input from the private sector will become more and more important in the future development of space activities and their regulation. Many issues are still unanswered to this day, and many other interesting questions will arise as we progress in our exploration of space.