SpicyIP Fellowship 2018-19: Is The Discussion on Patent Laws For Outer Space Inventions Really All That Relevant?

We are pleased to bring to you a guest post by our Fellowship applicant, Poornima Ramesh. Poornima is a 2nd year student at School of Law, Sastra University. This is her first submission for the Fellowship.

Is The Discussion on Patent Laws For Outer Space Inventions Really All That Relevant?

Poornima Ramesh

There is an interesting debate grappling the international community of IP lawyers – patents for inventions made and used in space. We are all aware that patent rights are territorial in nature and can only be enforced in the jurisdiction of registration of the patent. Now the current conundrum is two-fold – how does one get a patent for an invention made in space? The second is even more challenging than the first and questions the remedy available for patent infringements in outer space.

The Growing Importance of the Space Industry

These questions need answers in the light of growing importance of the space industry. If we have made extraordinary strides in space activities, it is primarily because of commercialization. Where companies are competing to make technology that will advance space exploration, patenting them is the next logical step. Currently, there is much enthusiasm surrounding this industry, as it is viewed to be a rewarding investment despite the high risk involved. Space companies have ambitious projects to develop technology for asteroid mining, which, if made possible, would pave way for space colonization. Apart from this, space tourism is also gaining much momentum. All these point out to the promising future that holds for space technology. Hence, there is a need for patent laws to promote space exploration and address investor concerns.

International Treaties on Space Law

On the international frontier, there are five treaties and conventions dealing with space explorations. India is a signatory to one and has ratified the other four. Even these international laws have failed to envisage the need for patent protection in outer space. But their words are interpreted to resolve the existing issue. According to the Registration Convention of 1975, states are obliged to register the object launched into outer space. Here, the spaceship is seen as the extension of the state launching the same. This convention is construed to mean that any invention in the outer space will be treated as belonging to that country in whose name the spacecraft is registered. This was spelled more clearly in the inter-governmental agreement signed in 1998 for the establishment of International Space Station. Hence, if in an Indian spacecraft an invention is made, then the patent will be granted by the Indian government and it will be protected by Indian patent laws even if the inventor is a foreign national. The answer makes sense and is quite direct. This clears the air of confusion for a moment.

Patent Infringement in Outer Space

But what about the patents already existing on Earth? Commercial enterprises register their patents only in those countries that they seek to establish themselves. It is possible to make that country which has granted the patent liable if it had violated the same in the space, for the Registration Convention considers the space vehicle to belong to the state of registration. The company could initiate proceedings in that country as their patent holds validity in that jurisdiction. But the hypothesis drawn is this – what if countries that don’t protect the specific patent violate them in the space? What remedy can such a patent holder avail? It is indeed very far-fetched. I would like to counter these seemingly crucial problems with a couple of questions. Isn’t the likelihood of the same happening on Earth equally possible? Does this need to be elevated to an issue that requires specific space legislation? Because the problem is about patent violations by countries where the patent has not been registered by the company. This is a trouble that lies more in line with the nature of patent registration. It is a costly affair for a business entity to register its creation in all the 195 countries of the world. Patent laws need to be restructured to protect businesses and this initiative has to begin at the international level. But to provide protection to an invention at a global level will abridge the moral rights of other inventors. In any case, it is highly impossible as well. This is the real issue that needs deliberation and I feel the current debate on the need for intellectual property law on space activities is a disguise of this.

But those in support of this debate add a further twist to the problem by stating that the term ‘launching state’ under the 1975 Convention could be exploited by businesses by either choosing it to be the country that launches the space object or the country from which the space object is launched. Remember, we talked about the commercialization of space sector? The critics say that private firms could pick a country of their choice to launch their spaceship, dubbing it as ‘flags of convenience’. This could help them avoid liability as the patent infringement would have occurred in that country of registration of the space object which hasn’t granted right to the patent, even if the company belongs to a country that recognizes the patent. Consequently, it is said, this could reduce investor confidence and lessen funding for companies. The entire premise of the argument rests on speculation. It is good to see that we are speculating an area even before we are visited with visible problems.  But are we speculating too much? Are we blowing out of proportion the possible ramifications of the absence of space laws? On the lack of reliable facts to substantiate, these arguments end up being nothing more than conjectures. Furthermore, let us not forget that this is a costly venture involving high cost of operations, thus making this all a billionaire’s club space project. Even assuming these concerns are valid, how is it at all possible to come to know of these infringements occurring in space?

To curb the exploitation of the ambiguous provision under the Convention, it is suggested that a single international jurisdiction be instituted for filing patents and address infringements, concerning space technology. What this means is an international recognition for patents developed by space technology companies, because the violation of these patents is apparently more serious than patent infringements occurring across any other technological sector! The motive behind the voices of those advocating single jurisdiction is clear – they are intensely betting on the growth of the space industry and want to protect it at any cost. But this is far from feasible and calls upon the need to study this area before we bring any treaty or legislation in haste.

India’s Stand

Currently, there are no codified laws in India governing outer space activities. Nor does the present law on patents address the issue at hand. Experts are stressing on the need for India to frame a legislation for outer space exploration, considering the strides it has made in recent years, leaving even the international community astonished with its technical prowess. However, the patent discussion is absent.

Presently, the only country in the world that has a legislation governing patents for invention in outer space is the US. But even the 35 U.S. Code §105  has its loopholes and is not fool-proof. As of now, there isn’t a single instance to back this discussion on the need for patent laws for infringements in outer space. Perhaps, we are moving towards these developments. Yet how sensible does it sound to govern outer space inventions under territorial laws when companies like SpaceX are aspiring to colonize Mars before another world war strikes.

We don’t know how the future is going to turn out. It will be a futile effort to formulate laws in a time where everything is uncertain. In the current context, we can only prepare ourselves to be ready for the future.

Image from here

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