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The Exploration of Space Intellectual Property

Space technology is extremely complex and at the forefront of what many people see as “high tech.”  Moreover, outer space activity is the result of intellectual creation and innovation.  Interestingly, due to the physical location of extraterrestrial activities and recent blending of state or country owned activities and private or commercial activities, as well as international cooperation, the legal framework is equally quite complex and as “unsettled” as outer space.  To illustrate the uncertainty, a couple of examples are given.

Patent protection is generally subject to an applicable territorial legal framework.  For example, U.S. patent rights relate to property that is conceived, made, used, sold, offered for sale, or imported into the U.S.  Thus, when an invention or an infringing object is made and/or used in outer space, which national or regional patent law applies?  According to international space law, the state in which the space object is registered retains jurisdiction and control over that space object.  But, this does not decide the question – does territorial jurisdiction under intellectual property law permit the extension of each national (or regional) law to the objects a country has registered and launched into outer space?  Currently, under a number of international agreements with respect to international space projects, registered space objects are treated as quasi-territory for the purposes of intellectual property.  In addition to the foregoing concerns, the Paris Convention guarantees the freedom of transport (doctrine of temporary presence) by providing certain limitations on the exclusive rights granted by a patent.  See Article 5 of the Paris Convention for the Protection of Industrial Property.  Does this doctrine of temporary presence also apply to space objects?  For example, what happens when a patented article is transported to or from a space station through a launching site in a foreign country?

As another example, fundamental principles of international space law require that:  the exploration and use of outer space be for the benefit of mankind; and that nations shall not appropriate outer space.  See 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).  Access to knowledge and information derived from space activities and the freedom of exploration and use of outer space are extremely important to understanding of outer space.  These principles, however, appear in contrast to the importance of protection of intellectual property which is designed to promote the development of science and technology, including for the exploration of outer space.

One thing is for certain.  With the increasing number of private or commercial players in extraterrestrial activities, and the extreme costs associated with development, laws governing intellectual property in space and their protection of these private investments are sure to become more clear.

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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