William Noble Hulsey IIIBill.hulsey@hulseyiplaw.com

HULSEY Intellectual Property Lawyers, P.C.University of Texas IC2 Institute, Austin, Texas

IP IN OUTER SPACE

J SWETHAALTACIT GLOBAL

20.03.2010

Hypothesis Exploration and Intellectual Property Are

Inextricably Associated

THE OUTER SPACE TREATY

The Outer Space Treaty, formally known as the Treaty on Principles Governing the

Activities of States in the Exploration and Use of Outer Space, including the Moon

and Other Celestial Bodies, is a treaty that forms the basis of international space

law. The treaty was opened for signature in the United States, the United Kingdom,

and the Soviet Union on January 27, 1967, and entered into force on October 10,

1967.

A VISION OF COMMERCIAL SPACE ECONOMY

The Mars Exploration Strategic Roadmaps

• A special patent issued by a branch of a

terrestrial Patent Office - possibly by a

Space Patent Office created explicitly for

the purpose.

• A space patent would extend, in an

orderly manner, intellectual property (IP)

protection to outer space.

What is a Space Patent?

Why do we need space patents?

THE QUESTION…?

• If a scientist/astronaut invents a medical cure or

treatment while on board the ISS, which patent

law can be used to protect it?

• At the same time, can an inventor be protected

against the unauthorized use of a patented

invention made in outer space?

• Patents create incentives to invest in new technologies.

• Patents apply only in the geographical territory of the issuing nation.

• Space lies outside the jurisdiction of any nation.

• Technologies particularly useful in space are therefore left out of the investment incentives of a patent system.

Why do we need space patents?

• U.S. patent law explicitly extends to any space object or component under the jurisdiction or control of the United States

• But only unless otherwise provide for by international treaty. 35 U.S.C. §105 “Inventions in outer space”

THEREFORE!• A Space Patent Treaty could fulfill the invitation supplied by U.S.

patent law for a new regime of patent protection in space.

What is the current situation?

1998 ISS AGREEMENT

• In addition to the international treaties that have been negotiated at the United Nations, the nations participating in the International Space Station have entered into the 1998 Agreement • This Agreement provides, among other things, that NASA is the lead agency in coordinating the member states' contributions to and activities on the space station, and that each nation has jurisdiction over its own module(s).

• The Agreement also provides for protection of intellectual property and procedures for criminal prosecution.

• This Agreement may very well serve as a model for future agreements regarding international cooperation in facilities on the Moon and Mars, where the first off-world colonies and scientific/industrial bases are likely to be established.

• National patent laws have been extended beyond national geography to apply to spacecraft or components according to which nation has jurisdiction or control over the spacecraft or component.

SPACE TREATY SAYS…

• The exploration and use of outer space … shall be for peaceful purposes and shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development.

The ISS Situation

• Leaves room for much uncertainty and conflicts of interpretation regarding what nation “controls” a space object.

• Especially with privately, built, launched, and owned space objects.

• It has uncertain application to planetary bodies, which are not subject to claims of national sovereignty under the Outer Space Treaty.

This is a problem because…

The legal regime of the ISS

• The complexity of the legal regime concerning IPRs for the ISS lies in the fact that the ISS consists of different modules provided by different partners.

• Each partner registers their flight elements and retains

jurisdiction, control and ownership over them.

• In fact, the ISS is more a combination of nationally owned space elements than an ‘international’ space station per se.

WHAT’S THIS…?

• Establish a Space Patent Office to examine applications and issue patents.

• Would follow the Patent Cooperation Treaty to provide priority of claims.

• Could be a modification of the Patent Cooperation Treaty to recognize the priority of claims for applications filed with the Space Patent Office.

• Be a tested for the long-running international effort to harmonize the Earth’s patent laws

The Space Patent Treaty

• Apply geographically throughout all of space above the limit of space above the Earth (100 km above mean sea level).

• Would grant the owner a period of IP protection on all use of their invention in space, or anywhere off of Earth for citizens of signatory nations.

• Permits the inventor to separate the terrestrial and extraterrestrial protection of their inventions.

Scope of Space Patents…

• A space patent treaty is already openly called for in U.S. patent law; and has the strong potential to boost private investment in the technologies that will provide us with ever greater capabilities to explore and settle space.

• Exploration and Intellectual Property are inextricably intertwined

• Space and Mars exploration will require both government and private sector involvement

• The tools exist to easily research intellectual property, particularly, patent rights

• This knowledge will advance the development of science supporting Mars exploration

"I don't think the human race will survive the next

thousand years, unless we spread into space.

There are too many accidents that can befall life

on a single planet. But I'm an optimist. We will

reach out to the stars.“

- Stephen Hawking