In Space, Nobody Knows Who Owns the Idea

Who among us has not been sad when we realize that our childhood dreams are no longer relevant? Conquering near space is unprofitable. Conquering deep space is impossible.

However, startups related to the commercialization of Earth's orbit live and multiply. They believe in the fact that humanity will try in some way to get beyond the Earth and that its best representatives will be willing to pay for the experience of being beyond these limits.

For example, Orbital Assembly Corporation from the US Sacramento announced its intention to open the first hotel in orbit for space tourists in 2027. Voyager Station will be a luxury resort for 280 guests and 112 crew members delivering guests. There will be a restaurant, bar, movie theater, concert hall, and gymnasium.

Perhaps you, too, dear reader, might want to get involved in space-related technology and/or business. In that case, remember to protect your intellectual property. Inventions are usually protected by patents - but they were invented for Earth. Going beyond Earth brings unexpected legal nuances that will need to be considered.

Space Smells Like Money

Space tourism is certainly not the only area of space exploration. McKinsey estimates the volume of the global space economy at $630 billion in 2023 and predicts $1.8 trillion in 2035. Their analysts divide all space technologies into “backbone applications” and “reach applications”. The former includes, for example, everything on which satellites, launch systems, and GPS-type navigation systems are built. The second are applications that allow “terrestrial” companies to generate revenue. For example, the algorithms in the Uber app combine satellite signals and data from the phone itself to plot routes and connect drivers with passengers.

The development of near-space technologies and business raises many questions. Including legal ones. Including in the field of intellectual property rights protection. First of all, patenting of inventions.

Patent is a territorial phenomenon by nature. A patent obtained in one region does not protect an inventor in another region.

In space, territorial boundaries are blurred. The general principles of interaction between states beyond the planet are set by a 1972 document called the Outer Space Treaty (OST). In full, its name is “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies”. It is the cornerstone of space law. It was signed in 1972 by the USSR, the US, and the UK, with 110 other countries joining over time.

This agreement, as well as a convention from the same year, tied the jurisdiction of space objects to the state that launched them. But it quickly became clear that it wasn't that simple:

1. Both agreements did not address intellectual property issues in any way.
2. Space projects are often realized by several states.

As a result, it is unclear who owns and protects the rights to this or that space object.

Space Tech Patents: Poor Legislation

In 1974, the Convention on Registration was adopted. It was already stipulated there that objects launched into space are attributed to the jurisdiction of the state directly providing the launch. As a result, if country A launched a satellite from the territory and spaceport of country B, they had to somehow decide which satellite it was. So, it belongs to both.

So, if a satellite or other object launched from the territory of country B violated some patents registered in this country, this violation could be recorded. However, if it used technology patented somewhere but not in country B, there was a legal white spot, and there were no grounds to protect the rights of the patent owner.\

In 1990, the U.S. attempted to extend its borders into space with respect to intellectual property protection and passed the U.S. Patents in Space Act (U.S.C. §105).

According to the Act, “an invention made, used, or sold on a space object under the jurisdiction or control of the United States (or a component thereof) shall be deemed to have been made, used, or sold in the United States.” Unfortunately (for U.S. inventors), this document applies to countries that have a special agreement to do so with the United States.

Patent law lawyers simply recommend that creators of space-related technologies patent them separately in all 72 countries that have signed the aforementioned Registration Convention. Of course, this is time-consuming and expensive.

Space Tech Patents: Subtle Nuances

Experts say it will be easier to protect rights for the authors of inventions that involve producing innovative components of the invention or the whole invention on Earth. The invention is tied to the relevant jurisdiction if the production is tied to a particular country.

However, a patent may describe an invention in such a way that only the use of the invention, but not the process of making it, is protected. In this case, there may not be a tie to the manufacturer jurisdiction. For example, if you invent a technology for extracting a certain element from lunar soil that can only be used on the Moon.

The most relevant example of a vulnerable invention right now is something that can be printed on a 3D printer outside of Earth (in orbit, on the Moon, on Mars, and so on). The ICON company, for example, is going to print on the Moon housing modules and entire houses suitable for living not only for astronauts but also for “civilian” colonizers.

And ICON patents, first of all, the printer itself. They have developed a device that has solved three problems of printing modules in space. The printer can withstand lunar temperature differences from plus hundred to minus hundred degrees Celsius, is lightweight so that you do not have to move excess mass, and, most importantly - can print components with dimensions larger than itself. Usually, the scale of the printer components is commensurate with the scale of the design being created.

So, what should a person who has developed a technology applicable to space exploration, invented a device or other invention, and rightly expects to reap the fruits of his labors do?

Just Patent It!

IP Watchdog columnists recommend three simple steps:

• Patent the invention in the U.S.
• Patent the invention in China
• Obtain the European Union Unitary Patent

As a result:

• Invention will be protected within the jurisdiction of the United States (and this is not only the territory of the country but also objects belonging to it in space)
• Patent will be valid in 17 countries that have ratified the Agreement on the European Unitary Patent (however, as experts write, one can count on the protection of this patent in all 39 European countries, which are covered by the powers of the European Patent Office, EPO)
• And, of course, the Chinese patent will be valid in China

Virtually all experts who have spoken on this topic advise the inventor to be as proactive as possible and protect his rights without waiting for the risk of infringement to arise. It is unlikely that apple trees will blossom on Mars in our lifetime, but the commercialization of space is developing and will accelerate (as well as its scientific exploration). So, if you are working on the relevant technologies, start consulting with lawyers in advance.