From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 18 November 2013

Patents in Space?

The IPKat has really got the hang of his
patented anti-gravity device -- but how
on Earth (as it were) will he get down again?
When it comes to space, we live in a mixture of fact and fantasy, of conjecture and confusion.  It's the place where we occasionally dream of travelling to but, more often, of sending other people whom we're not in a hurry to see again. It's also that happy zone in which we speculate about being reunited with lost pens, missing socks and sundry other domestic objects that find their way into black holes without the need for a Cape Kennedy launch. Anyway, Sean Gilday (trainee patent attorney in the Bristol office of Page Hargrave, one-time patent examiner and occasional contributor to this weblog) is here to tell us what he has been cultivating in inner space -- the bit between the ears.  Writes Sean:
Patents in Space Attending Venturefest in Bristol last week, two of the stalls there particularly caught my eye: Pocket Spacecraft and Bristol Spaceplanes Limited. Both concerned subject matter which would, if properly used, leave the planet.  Attempting to offer advice over IP protection, I realised that I actually had no idea if there were any agreements or legislation over how patents function in space.  Patents are, by their nature, territorial rights, so whose territory is space?  As someone who should theoretically be working until the futuristic-sounding year of 2052, I thought it might be a good idea to book up on the topic and share my thoughts with Kat readers.  Here they are.
In 1990, the US legislature passed an Act to amend Title 35 of the United States Code with respect to the use of inventions in outer space.  It states that  
“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” 
-- all of which seems fairly straightforward.  However, as far as I can tell (and if you know otherwise, please leave a comment), the USA is the only country so far to have added such a law to its books. If it was 50 years ago, that would not be much of an issue, as there were really only two big players in extraterrestrial transportation: the USA (as above), and the Soviet Union (in which inventors received certificates after signing their intellectual property rights over to the state).  But over the past few decades, space travel has become a much more international affair, with new players on the scene such as the European Space Agency, the Chinese National Space Administration and the Indian Space Research Organisation, the latter having very recently launched a spacecraft to Mars.  
Once the Welcome Committee appeared, the Kats
realised they'd landed on 
the Frozen Planet ...  
This trend is going to continue in all likelihood, with companies and governments of many countries reaching further out into space. Is is not time for some sort of international agreement over to whom space belongs?  Even if the answer is “no one”, there should still be some sort of agreement in place, perhaps by analogy with the Antarctic Treaty System, to make this clear. At the moment, the advice might be to obtain a patent for the jurisdiction in which the invention is being built, and from which it is being launched into space.  However, this is already problematic: the UK, at least, doesn’t list “export” as an infringing act in s.60 of the Patents Act (although in practice it is quite hard to export something without making or keeping it first).  A registered design, however, is infringed by the act of export: see s.7 Registered Designs Act. It may just therefore be wise to obtain one if possible. Still, earthbound patents may be of little use for those inventions that may only be worked in the environment of space, such as this zero-gravity casino.  And, while that may be a slightly frivolous example, there is every chance that in the future large scale structures will be built, or at least assembled, in space, instead of being made on earth prior to launch.  Indeed, this has already taken place to some extent with the construction of the International Space Station.  And, if Star Trek, or even Star Wars, are any indication, this could be fairly standard practice in the future.

20 comments:

Roufousse T. Fairfly said...

Some quick thoughts.

GRUR published an essay on this question circa 2003-2006, in German. I could possibly track it down, but I don't currently have access to a collection.

The Paris convention has exemptions for aircrafts and vessels entering foreign countries. Is a space vehicle an aircraft with a national registration? Space above the atmosphere w/sh/ouldn't not belong to national airspace.

Some European patents were granted in the past which I feel amount to claiming ownership of a region of space.

EP0648027B1 claims inter alia:

8. A constellation of telecommunication satellites which simultaneously minimizes (1) the number of satellites required to provide 24-hour cellular telephone communication coverage over a predetermined latitude range around the world, (2) the signal propagation time delays, (3) the transmission power required, and (4) the number of communication handovers, comprising:
a plurality of telecommunication satellites, each of said satellites having a plurality of multibeam antennas for enabling simultaneous bi-directional communication links with a plurality of cellular-based telecommunication devices, each of said antennas providing a field of view which is less than the field of view for any of said satellites;
each of said satellites residing in one of a plurality of predetermined orbits; and
each of said predetermined orbits being symmetrical with respect to each other, such that each of said predetermined orbits has a corresponding inclination angle with respect to the equator, a corresponding medium-earth altitude, a corresponding ascending node spacing between each of said satellites in the same orbital plane, and a corresponding relative phase angle between satellites in different orbital planes which will cause one of said satellites to come into view above a predetermined minimum elevation angle before another of said satellites disappears from view.

9. The constellation of telecommunication satellites according to Claim 8, wherein there are a plurality of said satellites in each of said predetermined orbits.

10.The constellation of telecommunication satellites according to Claim 9, wherein said satellites reside in three orbital planes and there are two satellites in each of said orbital planes.

11. The constellation of telecommunication satellites according to Claim 10, wherein corresponding inclination angle is between 50 and 55 degrees with respect to the equator.

12. The constellation of telecommunication satellites according to Claim 11, wherein said corresponding medium-earth altitude is approximately 5600 nautical miles above the earth.

Anonymous said...

No need to fret, you included the key phrase:

"under the jurisdiction or control of the United States"

Think of Space as belonging to all, but the little bits put up there by man are like little embassies in space. The embassy of any country within the jurisdiction of any other country would be the model to think of.

Anonymous said...

Well that European patent seems "geographical" patent, something like claiming a secluded island on earth. There is another "space" technology that I have come across -

"Mass Propogation of New Pluripotent Stem Cells in Space"
The second part of the unique space technology pertains to the mass replication or propogation of stem cells in space, something that can be done on Earth but at much slower rates than in space.
http://www.zerogsi.com/our-technology

And I agree with the Anonymous - No need to fret- the solution is pretty straightforward - but only in case there is no collaboration. What happens in case of collaboration? Such as in ISS- only space "laboratory"?

Remi Auba said...

Article 611-1, para 4 of the French Intellectual Property Code provides that "unless provided otherwise by an international treaty to which France is a party, the provisions of this article [permitting the filing of French patents under 'terrestrial conditions'] apply to inventions carried out or used in outer space and notably on celestial bodies or in or on spatial objects placed under national jurisdiction pursuant to article VIII of the 27 January 1967 Treaty on the principles governing the activities of the States with respect to the exploration and use of outer space, notably the moon and other celestial bodies".

In addition, pursuant to the Intergovernemental Agreement regarding the International Space Agency the Space Station Partners States are allowed to extend their national jurisdiction in outer space, so the elements they provide are assimilated to the territories of the Partners States.

Article 21, 2 of said Agreement furtyher provides that "an activity carried out in or on an element of the space station is deemed to only have occured on the territory of the State which has registered that element."

In this context an invention manfactured with Canadian componants would be deemed to have been carried out in Canada.

Ewen Mitchell said...

Interesting post Sean thanks. Can we, or in what circumstances can we, assume that launching an invention into space, or using it there, makes it available to the public? No territorial restrictions apply, at least under English law, and it looks as if the US legislation also applies to disclosure. Might this question drive filing strategy if and when it is settled?

Andy Spurr said...

If you subscribe to the view that the area above the atmosphere 'belongs' to the country underneath, this could be very lucrative for equatorial countries as geostationary satellites stay above a particular point on the equator.

This means they would not be 'temporary', thus not escaping infringement of s60(5)(d) like laws.

Patent rights in these countries could be used against all the communications satellites crammed into that orbit.

Chloe said...

It would be sad if we took our petty squabbles into space. Thankfully, it's not easy to put borders in space

Anonymous said...

Might Article VIII of the Outer Space Treaty of 1967 be of some relevance here?

http://en.wikisource.org/wiki/Outer_Space_Treaty_of_1967#Article_VIII

"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."

Presuming that an object launched into space was patented in the state "on whose registry" it was launched, would it retain the patent protection of that state once in space?

Anonymous said...

After searching on Google, an interesting article entitled "International Law of Outer Space and the Protection of Intellectual Property Rights" sometime in 1999 appeared in the Boston University International Law Journal, Vol. 17, No. 311, 1999 - See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1687422

Interestingly, the article was written by students from the Philippines, a country that surprisingly does not have an outer space program like India or the US.

SG said...

Thanks for the info and views everyone. Particularly Remi for enlightening me on the French IP Code and its provisions for inventions in space.

I think commercial space flight could still be a contentious issue. Historic agreements seem to assume that nation states or international organisations will be the only ones launching things into space, but this may not always be the case. For example, Virgin Galactic are due to commence flights into space next year. The will launch from the Mojave desert, however, once out of the atmosphere can the spacecraft still be said to be "under the jurisdiction or control of the United States"? I would suggest not. But according to the comment above, they would still be launched under the USA's "registry". I'd be interested in seeing this register if anyone knows where I can find it. On whose registry is a spacecraft launched from international waters (http://en.wikipedia.org/wiki/Sea_Launch)? I find it very interesting to think about.

And here was I thinking that the only comment would be to point out that Star Wars took place in the past, not the future(!).

Roufousse T. Fairfly said...

Interestingly, the article was written by students from the Philippines, a country that surprisingly does not have an outer space program like India or the US.

Don't underestimate "small" countries. Have you ever heard of the Lebanese Rocket Society?

Nicholas Braddon said...

I recently read a post on the Rubicon IP forum entitled "Space, the final frontier for patents", which some of you might find interesting - I certainly did.

Anonymous said...

In response to Nicholas, in some Star Trek episodes it's acknowledged that 'time' is a frontier beyond 'space', and there is a separate 'prime directive' for time. However time travel does of course make patenting trickier.

Anonymous said...

That presumably solves the paradox of why we don't see travellers from the future if time travel is possible... They don't want to go back before their priority date, to avoid anticipating the patent to the time travel device (and presumably the licenses to other patented technologies they might be carrying have similar clauses).

Anonymous said...

Anonymous at 11:05,

That has to be the most pollyanna statement I have ever seen.

We should just abolish all court systems now since all citizens are such good citizens.

Anonymous said...

I havn't been able to track down a copy of the actual legislation but there are some notes on IP rights as applied to the ISS here (http://www.esa.int/Our_Activities/Human_Spaceflight/International_Space_Station/International_Space_Station_legal_framework)

Hope this helps.

Anonymous said...

Anonymous at 11:05
A great theory!! There's clearly a problem though. Anyone who had their patent rejected for time machine-like devices after the first (in the future) would surely go back to avoid infringing, which would lead to a race back in time, so we still should have seen a time machine by now

Anonymous said...

Anonymous at 16:10

There is already time travel.

The problem is that you cannot recognize it as such, since time travel merely creates an alternative universe. The one we inhabit is the trunk, all others are branches. Thus, as soon as someone travels back in time, they create another branch, unseen by the trunk.

I know, it is a little disappointing, but that's just how it works.

Anonymous said...

Anonymous at 17:44 one could of course use the machine that allows one to cross alternative universes to overcome the situation you describe.

Anonymous said...

Anonymous at 9:27,

Ironically, that would be theoretically possible - but that machine has not been invented.

(hmmm, I think I will be busy for the last three weeks)

#$@$%^$

Nope, cannot be done - trying to do that just causes those alternative universes to crash into each other (lucky for this one, I used a couple of spare universes that I did not much care for).

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