Space explorations gained a lot of pace after the successful launch of Sputnik, in 1957. Soon after, there have been many other successful space ventures, including the first man landings on the moon via the Apollo 11 in 1969. Neil Armstrong the first man to walk on the moon uttered the famous words, "That's one step for [a] man, one giant leap for the mankind." In perspective the words were not wrong, the success of the mission inspired many other daring explorations into the outer space.
A spur of growth in space activities resulted in cross-border, bilateral, multinational ventures. One mission that is worth the mention, standing as a base for future experimentation in terms of technological advancement and legal exemplar is the International Space Station. The International Space Station, or ISS, is a prominent example in this front. The commercialization of the space industry is a result of the high costs involved in the technology for realization of big projects; a cooperative venture undertaken between States was the first step towards this form of globalization. As of this date, the ISS has been the most complicated of all the space explorations, politically. This collaboration of the five space agencies, the NASA, Roscosmos, JAXA, ESA and the CSA is a habitable civil station, and has been in orbit since 1998.
The ISS has been built with the objective of research and development in the fields of biology and biotechnology, educational activities, earth and space science, human research, the physical sciences, and all the relevant technology which can be utilized in long term space explorations. There already are several patents and partnerships in place which illustrated the benefits of the public investment in the ISS.1
The fact that the ISS is a manned civil station installed in the outer space does not deter the astronauts within the module to work regularly. The control centers are responsible for prioritizing the experiments conducted, monitoring the resources and management of the time in the hands of the astronauts.2
While the race towards the outer space started as an exclusive work front of the national governments, it gradually took into its embrace the private entities. The American aerospace manufacturer, SpaceX3, has been awarded a Commercial Orbital Transportation Services4 contract to launch a system to resupply cargo to the ISS. The goal of the commercial crew and cargo transport capabilities is to "develop reliable means of launching cargo and supplies to the ISS throughout the duration of the facility's operation".5 Through these public private partnerships, it is easier to achieve and develop technology, while saving public capital investment and time factor.
With participation flowing in form of private investments there is also the need for according protection and assuring returns on the investments privately placed by this sector. The present conditions stress on the inventors' claims over their own labor. Today, SpaceX enjoys the reputation of being associated with the noble mission of the ISS, acting as a contractor for developing efficient commercial launch systems. With an increase in the involvement of private players in the domain, claims over intellectual creations are bound to come up in the future.
While the debate is on for the ownership and the granting rights over the inventions made in the outer space, as a consequence the matters of applicable law and jurisdiction are also elements of consideration. Patent laws are strictly territorial in nature, it is understood that patented invention enjoys monopoly and protection against infringement only within the territory which grants it those rights in the first place. On the other hand, space is an extra-terrestrial domain, where the national laws are not applicable and the international principles prevail.
If we rely on the Outer Space Treaty,6 we are to understand that the outer space is open to all mankind, and cannot be appropriated by claims of sovereignty of the nations. The Treaty also provides for the jurisdiction and the control of the space vehicle to be awarded to the registering state (Article VIII provisions). While we are to understand that the control extends to the personnel within the space vehicles, are the provisions enough to take into consideration the infringement matters too?
If we look at the example of the ISS, special attention
must be given to the ESA, which has participation from about 10
states, and not all the 21 ESA member states. Where a dispute of
patent infringement arises on the ESA module of the manned civil
station, it is open for the aggrieved to bring action against the
infringer in any of the participating member states of the ESA.
This also gives way to instances of forum shopping, where the
aggrieved will always look for the most favorable jurisdiction to
put forth his claims.
The United States was the first nation to explicitly extend the application of its patent laws into the outer space, through § 105 Inventions in Outer Space.7 Other follow the suit, with Germany first letting its patent laws be applicable by de facto provisions. While the Article 21 of the IGA gives a clear mandate to the state of registration of a space station flight element, to extend the scope of its 'national' patent law to the activities occurring in the particular element, we are yet to achieve uniformity in the applicable law.
As of now, the NASA has contracts with private entities; soon enough there will be many other international arrangements with the other space agencies opening up. As we progress with the evolution of the ISS we stand to witness many potential legal threats, and hopefully all of it will guide us towards the onslaught of a uniform patent regime.
1 http://www.nasa.gov/mission_pages/station/research/results_category , Visited April 27, 2015.
2 European Space Agency, Columbus: A New European Science Laboratory in Earth Orbit, Oct. 2007.
3 Space Exploration Technologies Corporation, SpaceX, is an American aerospace manufacturer, which also provides services of space transport. See more at, http://www.spacex.com/ , Visited April 24, 2015.
4 Human Space Flight Transition Plan, p. 23. See also at, http://www.nasa.gov/subject/3622/commercial-resupply/ , Visited April 24, 2015.
5 National Aeronautics and Space Administration Authorization Act, 2010, Sec. 401 and 402.
6 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, Oct. 10, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
7 35 U.S.C. 105, Inventions in Outer Space, Pub. L. No. 101-580, § 105, 104 Stat. 2863 (1990).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.