Patents - To Infinity and Beyond? Can territorial rights provide protection in outer space and how can space inventions be best protected? It is difficult not to have seen the headlines over the last few months: Billionaires go to space! It is a signpost for space becoming more accessible. It may still seem a rather distant prospect for most, but the achievement of private companies such as SpaceX, Blue Origin, and Virgin Galactic who have demonstrated their reusable space technologies launches humanity closer to affordable commercial space travel.
A new space race? The reasons that the space industry is making the giant leap towards affordable commercial travel is down to the huge amounts of time and money invested into the projects by private companies – a shift from the old model of solely state-backed projects. As the private companies invest more and more time and money into the technologies that are making all this possible, they are also increasingly keen to protect their intellectual property rights. And in some cases, the application for intellectual property rights appears to be an attempt to frustrate competitors in their endeavours to reach the cosmos. For example, Blue Origin filed an application for a patent back in 2009 for the sea landing of space launch vehicles and associated
systems and methods (US18724309), which was granted in 2014.
the question: how do you protect inventions in space?
However, this may seem a little odd as it is SpaceX who is more closely associated with sea landing its reusable rockets. SpaceX’s business model was essentially formed around landing its test booster stages on sea-faring platforms and the granted patent may have essentially prevented SpaceX from operating. So, SpaceX had to do something to prove the patent was invalid. In fact, the lawyers for SpaceX filed two challenges against the patentability of Blue Origin’s patent, one citing prior art from 1998 and the other arguing that the technology disclosed in the patent was “old hat at best by 2014”. Blue Origin eventually accepted defeat and had most of its claims cancelled, clearing the way for SpaceX to continue to operate its sea landing rockets.
Terrestrial law in outer space?
The trend toward reusable space vehicles provides an opportunity to maximise the potential of intellectual property rights. Reusable technology can cut the cost of space flight by millions of pounds and preventing a competitor from being as efficient evidently puts the rights holder at an advantage. However, the principle of intellectual property rights, such as patents, is that they are only enforceable within the territorial boundaries of the countries designated. This raises
At first glance, there is a conflict between intellectual property rights and international space law. Intellectual property rights are monopolistic in nature and exist within the territorial boundaries of a state. However, 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 prescribe that the exploration and use of outer space for the benefit of mankind and the non-appropriation of outer space by any nation are fundamental principles under international space law. At least the non-appropriation principle appears to pour cold water on the idea of monopolistic rights in outer space. As you might expect, international space law is as complex as the technology that enables us to get there. When it comes to intellectual property rights and specifically, patents, there is no law, treaty, or convention that has been tailored to deal with the apparently contrasting nature of space and intellectual property. However, there are a few pieces of legislation that we can use to guide us from our territorial rights to extra-terrestrial rights. The same legislation that appears to discredit the application of
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