Op-ed | Extraterrestrial Patent Infringement
Space technology is advancing rapidly and human activity in outer space is more common than ever before. Often space technology is protected by a patent.
A patent is a territorial right, meaning that it applies only to the territory (including the air space of that territory) in which the patent is granted. For example, a U.S. patent provides the patent owner with a legal means to prevent others from exploiting the invention covered by that patent without his or her permission in the United States only. If the invention is not covered by a patent granted in any other jurisdiction, others are free to make, use or sell the invention in those other jurisdictions.
But, given that a patent is a territorial right, can a patent afford protection of an invention whose commercial exploitation requires that it be made, used or sold in outer space?
This is becoming an increasingly important question as we see human space activity on the rise with ever greater presence and research aboard space stations, more and more satellites and also the opportunity to experience space becoming more attainable for everyone through space tourism with companies such as Virgin Galactic. A growing number of players in the field of space technology means that the uncertainty surrounding unauthorized use of patented inventions in outer space soon needs to be addressed.
Perhaps the question to ask is, whose territory is space? Should infringement be determined according to the jurisdiction above which the space object is at the time of an alleged infringement? It appears not.
The Outer Space Treaty of 1967 (Article 8) states: “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object… while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth.” Therefore, it could be argued that the patent law of the state in which the space object was registered and from which it was launched applies to an invention that is subsequently made, used or sold on that space object.
Interestingly, U.S. patent law has an explicit provision along these lines for inventions in outer space under Title 35, Section 105 of the U.S. Code: “Any invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States.”
This suggests that unauthorized manufacture, use or sale of a patented invention on a space object under the jurisdiction of the United States will be treated as if it were an infringement under U.S. patent law. After all, when a space object is launched into Earth orbit or beyond, the launching state must register the space object and so the jurisdiction of the space object would be retrievable. There even exists a provision for cases where there are two or more launching states of a space object under the U.N. Convention on Registration of Objects Launched into Outer Space, which states: “Where there are two or more launching States in respect of any such object, they shall jointly determine which one of them shall register the object.”
However, the United States seems to be alone in providing an explicit provision for inventions in outer space. Most other jurisdictions do not currently have any such provisions, and there still remains some uncertainty as to whether an inventor can be protected against the unauthorized use of a patented invention in outer space.
Nevertheless, with the rapid advances in space technology, ever-increasing human activity in outer space, the possibility of future private and commercial activities in space, and a growing number of players in the field of space technology, the uncertainty surrounding unauthorized use of patented inventions in outer space will soon need to be addressed. It should be ensured that patent rights can still be exercised in respect of patented inventions used in outer space and that liability for infringing those patent rights in outer space can still be determined. Extraterrestrial patent infringement and commercial space patent litigation are a real possibility for the future.
The possibility of enforcing patents in outer space will pose a serious challenge for the space sector where the freedom of action in space is important for the future of exploration and discovery. In fact, it will conflict with the fundamental principles for space activities prescribed in Article I of the Outer Space Treaty of 1967: “Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States… in accordance with international law… There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international cooperation in such investigation.”
However, even in 1967, private, nongovernmental space activity was clearly contemplated. The Outer Space Treaty (Article 7) also states: “States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities. … The activities of non-governmental entities in outer space, including the moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty.”
This suggests that the responsibility for space activities still rests with the state. So when it comes to enforcement of a patent or prevention of patent infringement, does a patentee have to work hand in hand with the relevant state? Alternatively, does the relevant state bear any liability for patent infringement in space onboard one of its registered objects such that the state could be named as a co-defendant in litigation? These issues have never been tested and so, until any attempt is made to enforce such rights against acts occurring in outer space, this remains to be seen.
In any case, how easy is it to detect patent infringement in outer space? How can patentees even prove infringement of their patented inventions if that infringement is use of a patented product or process only occurring in space?
For example, if the patented invention relates to a method for operating a heating module, how can you detect patent infringement unless you are present on the space object on which the method is being performed? If the space object never returns to Earth, or returns to a different territory than that in which it is registered, a customs-type seizure is not possible.
On Earth, a patentee can become aware of infringing activities by third party marketing or sales campaigns or by seizing infringing products for analysis. The same detection is not possible in outer space, which makes enforcement that much more difficult, if not impossible.
After all, in space, no one can hear you scream “patent infringement!”
Lisa Williams is a U.K. and European patent attorney at Haseltine Lake LLP.