Despite having had an interest in all things extra-terrestrial from an early age, I’ve been regularly dumb-struck by innovations in space-related technology both upstream (things in space or launching them there) and downstream (things down here using technology or data from space).  Planet Labs are deploying a constellation of 28 tiny imaging satellites, each costing a fraction of the price of typical commercial satellites, promising near-global, daily imaging.  Brokers like Spaceflight Services put these and other small satellites into orbit by squeezing them into the space inside launch vehicles around larger satellites.  Terra Recovery image landfill sites from space, to figure out what their robots could mine from them.  You can even buy your own satellite launched and ready to do your bidding, evil or otherwise (laser weapons not included).

Prompted by such giant leaps for space-faring mankind, and along with the likes of World IP Review and IPKat, we’ve been pondering some idiosyncrasies in IP in the space sector.

First and most obvious is the issue of jurisdiction, or lack of one.  Or perhaps the difficulty in pinning down exactly which jurisdiction may apply in orbit or outer space, in order to establish one’s territorial IP rights.  Article VIII of the Outer Space Treaty 1967 is a good jumping-off point:

“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.”

However, exactly where an object launched into space was registered is not as simple as one might think, as this article from World IP Review points out.

The US has gone further, with an Act in 1990 stating that any invention made, used or sold in outer space on a space object under US jurisdiction shall be considered made, used or sold within the US.  There is also a specific section on IP (Article 21) in the international agreement on the International Space Station, which appears to state that any inventive activity on the ISS will be considered to have been done in the territory of whoever made (registered) that part of the ISS.  Here is the European Space Agency’s view on the topic.

A regular query is: how on earth can an IP right holder sue for infringement when the infringing article is in outer space?  Of course in the case of products, there are still plenty of possible infringement opportunities available on terra firma; for example making, selling (or offering for sale) and importing a product are all potential modes of patent infringement (before launch!) in the UK.  It may of course be easier to catch the infringement before it ends up 300km away in orbit.

However, manufacturing in space itself, which is not far off, may bring products back onto the thorny (non-) ground of jurisdiction.  And if the patent covers a process, for example a way of collecting satellite imaging data on crop rotation or deforestation, any (direct) infringement may only take place in space.

Another peculiarity in the sector, perhaps only for upstream technology, is that your customer and their competitors may well be state or quasi-state bodies.  Why file a patent when the only potential infringer to sue might be NASA or the Kazakh government?

It is for such reasons that some in the sector (notably Elon Musk’s SpaceX) have shied away from patent protection.  We’d argue that even in such situations ruling out patents all together may be short-sighted – for example, non-core technologies may be ripe for such protection, and potential later exploitation by licensing to other (non-state) parties.  But it is worth noting that other forms of IP, such as know-how and trade secrets, may come into play more often in certain space sector IP strategies.  In any case, it will ultimately pay a company to have an IP strategy, and to know exactly what IP it has or may generate, even if the strategy is to keep much of it secret.

A further factor is that much innovation in the sector (in common with some other high-tech sectors) comes from Universities or their spin-out companies, which means that the old academia/IP, publish-or-die/please-don’t-publish-before-we’ve-filed-a-patent-application dichotomy can be a feature.  Your friendly local patent attorney can of course help to navigate safely between these apparent extremes and ensure satisfactory docking procedures.

These and other issues will be on the agenda in our webinar on IP in the Space Sector, this Thursday 27^th February from 12:30pm to 1:30pm – click the link for details and sign-up.

In the meantime, hot off the press: if you’re with an SME in the space industry looking for “advice to improve management of IP” (as they put it), consider applying to the Technology Strategy Board for one of the new round of Space Innovation Vouchers to get funding for it.

Adam Brocklehurst  21 February 2014