Friday, 18 June 2021

Protecting IPR in Outer Space - A Legal and Technological challenge

The initial spirit of exploring outer space starting with the first space flight by Sputnik in October 1957 got metamorphosed into more extensive exploration of outer space and terrestrial bodies, research activities and sensing of commercial interests over years. The insatiable and unending human spirit to know the unknown and the advancement in science and technology have been the main drivers. Telecommunication and navigation have established an undisputed position in outer space for commercial and strategic interests and now space tourism, the utilizing materials of terrestrial bodies and collaborative research in space stations have added new dimensions.

All space activities whether exploratory or commercial, undertaken by nations and companies are presently governed by two international treaties namely, the Outer Space Treaty of 1967 and the Moon Treaty of 1979 which have their origin in the Cold War Period. The central theme was to allow and regulate peaceful use of outer space and terrestrial bodies without claiming any ownership of any resources, appropriation of any part of space and undertaking military or military like activities. The Moon Treaty has, in effect, forbidden states to conduct commercial mining on planets and asteroids until there is an international regime for such exploitation. Protection of IPR is not an element of these treaties as commercial activities were not visualized at that time.

Several countries including India, are studying promulgation of a legal framework to allow private entrepreneurs to undertake space activities as also how IPR could be protected in the outer space. The draft Space Activities Bill 2017 proposed by ISRO carries a section on IPR. USA provides for protection of inventions in outer space in 35 USC 105 enacted in 1998. USA has recently shared its vision in the Atlantic Council to overhaul these treaties for facilitating space activities for commercial purposes. It is expected that investments and other efforts towards undertaking commercial activities in outer space would grow in coming days.  If no IPR protection is provided, why would any company invest resources and time in undertaking any outer space  activity? If no company comes forward, space resources such as Helium 3 cannot be utilized for the benefit of human race.

Are patents being issued for inventions useful in exploring outer space and exploiting the same for satellite telecommunication and navigation? The answer is yes; one of the first few patents was issued in USA in 1961. Since then, few thousand patents have been granted (based on my searches). How many of these are enforceable in outer space is a million-dollar question? It is a complex subject involving orbit selection, orbital dynamics, satellite designs and their control in invisible physical space. Apparently, orbits themselves are not patented but systems incorporating technological solutions, special materials, electronics etc. for telecommunication are the subject matter of patents. The Molniya orbit originally designed by Russians is one such orbit used frequently by the aerospace community as this orbit maximizes the time satellites can spend over the northern hemisphere.

IPR concerning outer space would primarily be the outcome of research carried out on Earth and research conducted in outer space and on celestial bodies. The former is easy to handle as it is governed by the existing IPR laws in each country. Territoriality and sovereignty are at the centre of all existing IPR laws. There is no globally accepted definition of the starting point of outer space. However, many aerospace enthusiasts consider the Karman Line, which is 100 km above the sea level, as the beginning of outer space. The present jurisdiction of countries for civil aviation activities is only up to a few kilometres above the Earth. Outer space is thus beyond and outside the territory of any country, and any sort of appropriation is not legally possible and sustainable.  Hence, applicability of IPR laws practised on Earth to outer space is froth with legal and technological challenges.

The question of jurisdiction in outer space is not easy to answer. What could be the legal grounds for ascertaining jurisdiction, which transcends the boundaries of IPR laws?

Let us look at the following situation. Consider a company A which lands on moon, collects soil samples or some other material and then files a patent based on these raw materials in a country on Earth. Can a patent be granted under the existing international space laws / treaties? How would such IPR be enforced both in outer space and on the Earth? The first question would be why not? The second would be no and the third could be yes provided the patent immediately after grant, is placed in the public domain for its use by others without the risk of infringement. The third choice may perhaps, satisfy the broader goals of two treaties mentioned above.

There are plenty of questions and few are being raised here. Can inventions made and patented on Earth be used by others in space freely without the risk of infringement? How do you apply the criterion of inventiveness and non-obviousness in respect of inventions made in space? Non obviousness demands that the invention should not be obvious to a person skilled in the art. It would be difficult to find such a person as the environment of experiment in space may not be created on the Earth. Similarly, the requirement of enablement and adequate disclosure may be difficult to meet as it would require undue and expensive experiments to work an invention backwards.

One can carry out different types of scientific research in space, especially taking advantage of zero gravity or weightlessness as there is no human effort in creating the environment. Do the research results under this circumstance qualify for a patent? Whether the application of IP laws to outer space activities is a breach of the State’s obligations under the treaties? Many more questions other than the above need to be answered for expanding the commercial (and strategic) use of outer space and terrestrial bodies. Collaborative research in International Space Station may provide partial answers to some questions.

Infringement, of patents and other IPR granted on Earth, in outer space is a serious matter for companies to guard against. Can an amicable solution be found through novel licensing arrangements which are applicable in outer space?

IPR issues will start multiplying after a few years when commercial activities grow in numbers. One can sense emergence of litigations. Do we need an extension of the existing IPR laws to outer space or design a new legal framework for IPR protection in outer space? Should a common legal system be developed for IPR protection on Earth and outer space simultaneously? The world faces a grand challenge!!!    

 #outerspaceIPR  #spaceorbit #karmanline #molniyaorbit

© R Saha

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