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.