Editorial | Clear the Barriers to Commercial Research on ISS

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The international space station (ISS) has been alternatively touted as a test bed for future astronaut missions to deep-space destinations and a world-class microgravity research laboratory. But with manned missions to Mars — or even a return of astronauts to the Moon — well beyond any realistic budgetary and planning horizon, the emphasis needs to be on the latter. That means, among other things, that the U.S. government, as the lead investor on station, must do everything it possibly can to encourage private-sector research aboard the outpost.

Unfortunately, there currently exists a commercial disincentive in the form of uncertainty over intellectual property rights to data and discoveries resulting from research aboard the station. Given the time required to develop and carry out experiments aboard the station, and the fact that the international partners have not committed to operating the platform beyond 2020, this problem — regardless of whether it’s more perception than reality — must be addressed sooner rather than later. If there’s one thing that discourages private-sector investment, in any activity, it is uncertainty.

Part of the problem stems from the cooperative agreement used to establish the U.S. portion of the space station as a privately managed national laboratory in accordance with the NASA Authorization Act of 2010. Such cooperative agreements typically incorporate standard language stipulating that after five years the government automatically obtains the rights to data from the resulting research and development, including the right to disseminate that information to other entities. Small companies hoping to test new plant variants or drugs aboard the space station argue that five years is not enough time to fully capitalize on their investment.

Another problem, this one for large companies, is that NASA, as a title-taking agency, automatically gets the rights to any invention created at an agency facility under a Space Act Agreement. Although companies can seek a waiver to retain exclusive rights to their inventions — NASA officials insist that such requests are routinely granted — the fact that they must go through the process with no guarantee of the outcome could give them pause.

Although opinions appear to vary on just how much of a hindrance these intellectual property rights issues pose, the government should err on the side of caution by eliminating the potential for uncertainty and confusion. NASA and the Center for the Advancement of Science in Space (CASIS), the nonprofit organization that manages and coordinates non-NASA research aboard the station, are pushing legislation that would do just that. Time is of the essence, NASA and CASIS officials say, in part because of the pending decision on whether to operate the space station beyond 2020: The outpost’s demonstrated value as a commercial research platform should be factored into that decision.

Language in a Senate NASA authorization bill drafted in July would help by giving the agency administrator the authority to waive rights to any commercial inventions made in the course of research aboard the national laboratory portion of the station. It also shows that lawmakers are aware of the issue and have the inclination to do something about it. 

According to some NASA experts, however, the Senate language does not adequately protect intellectual property rights for small companies, nor does it protect data. NASA is proposing alternative legislation that proponents say would provide broader protections for private-sector researchers while preserving the government’s right to commercialize inventions developed using government resources. 

But with Congress unlikely to pass a NASA authorization bill this year, NASA needs to find another legislative vehicle to get the measure passed.

One possibility is the Space Launch Liability Indemnification Extension Act (H.R. 3547) that passed in the House Dec. 2. The Senate, which returned from its Thanksgiving holiday recess Dec. 9, is working on similar legislation. But addition of the intellectual property rights language would complicate what otherwise is a very straightforward piece of legislation that must pass this year to extend the shield for U.S. commercial launch providers against launch damage claims filed by uninvolved third parties. 

Another potential vehicle is appropriations legislation that must pass by Jan. 15 to keep the U.S. government funded beyond that date. The issue there is the strong possibility that Congress will pass another continuing resolution that keeps the government operating at prior-year funding levels and offers little room for policy-oriented provisions.

If, as seems likely, these opportunities come and go, lawmakers on the relevant committees should make every effort to get space station intellectual property rights on the agenda for next year. Hearings on the matter early in the next legislative session would be an excellent start. This is not something that can be allowed to languish for another year or two. If that happens, the opportunity to reap true commercial benefit from a unique — and very expensive — microgravity platform could be lost forever.