Outer Space, being a Global Common and beyond exclusive jurisdiction, poses recurrent challenges to the application of the patenting system that have to be met with.
Patents are exclusive rights that are granted to inventors by their national governments to empower them in such a way that others are debarred from making, using or selling that invention for a limited period of usually 20 years. However, since patents are granted by national governments, they are exclusively territorial rights that are bestowed upon the inventor and can be enforced only in the jurisdiction of the patenting government. This seems to briefly sum up the functioning of patents on Earth. The predicament of the operation of patent law in the outer space is an entirely different story and involves many legal and consensual hassles of its own which are going to be dealt with in this article.
JURISDICTION IN OUTER SPACE:
Outer space does not have any specific definition, however, it is known by many international jurists as the area that begins from the lowest altitude above sea level at which that object can orbit the Earth without using any artificial propulsion systems, approximately 100 km (60 miles).
Article I of the Outer Space Treaty that governs space laws establishes that outer space is beyond the territorial jurisdiction of any state and no state can claim sovereignty over it as it is a global common, free for use, exploration and experimentation by all.
According to Article VIII of the Outer Space Treaty, every “launching state” which has registered the space object with an appropriate registry, will retain jurisdiction and control over that object and any personnel on-board.
Thus, analysing the jurisdiction of outer space, patent issues are bound to arise since patent laws are inherently territorial in nature but space has no such territory belonging to a specific State.
URGENCY OF AN INTELLECTUAL PROPERTY RIGHTS REGIME IN OUTER SPACE:
There is an obvious and inevitable reason as to why there is an imminent necessity to have an Intellectual Property Rights regime in outer space. This stems from the fact that initially space technologies were undertaken by public entities and were generally governmental space programs funded entirely by the government involving exploratory, experimental and military space operations which were in no way commercialized. However, with the advent of the private sector taking interest in the space technologies and corresponding ventures, it became imperative for intellectual property protection to step in, in order to foster innovation and development in space research and exploration. Without such protection, private players will not be able to not reap the entire benefits of their investments which will attract their dissatisfaction and ultimate removal from this vital sector requiring huge amount of R&D.
APPLICATION OF INTELLECTUAL PROPERTY LAW IN OUTER SPACE:
The biggest issue that is frequently raised with regards to inventions in outer space is the applicability of national/regional patent law where there is no territorial jurisdiction, as has been discussed earlier.
However, in order to protect the exclusive rights of the inventors in such an unbounded zone, an international agreement between different governments for the ISS (International Space Station) was formulated to which United States of America, Japan, Canada and ten other member states became signatories on 29th September 1988. This intergovernmental agreement provides that according to its Article 21, each partner will be having jurisdiction over its own registered element which will be in line with the basic principle of both the Outer Space Treaty and the Registration Convention.
LIMITATION OF THE APPLICABILITY:
As we know, patents are filed by the firms and companies in specifically those countries where there is or there can be a significant market potential for that invented technology. However, the facts surrounding the case study of outer space are entirely different. Since outer space is beyond the scope or adherence to any territorial demarcations, these firms and companies need to apply in every country of the world where they feel a similar space innovation may register itself by a competing firm or industry. Such a behaviour turns out to be really tedious, time-consuming and not in any way cost-efficient.
The seemingly precarious bridge to gap between Intellectual Property Rights regime and Space Law governance can only be achieved if the international space law principles and international obligations are ethically and justly incorporated into the patenting system, whereby everyone is placed equitably with respect to space technology innovations and there is ensured non-infringement or circumventing of patent rights of already patented space technology.