PATENT IN THE FIELD OF SPACE TECHNOLOGY

Submitted to: Submitted by:

Ms. Shalika Anna Herenz Prakamye Shah

Faculty, Roll No. - 699

Intellectual Property Rights Sem. 7 , Sec. B

NUSRL, Ranchi.

NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN

LAW, RANCHI
 TABLE OF CONTENTS

1. INTRODUCTION……………………..………………………………………….….3

2. RESEARCH OBJECTIVES………………………………………..…………...……5

3. RESEARCH METHODOLOGY………………………………………..……………5

4. ROLE OF INTELLECTUAL PROPERTY IN SPACE ACTIVITIES………………6

5. DOCTRINE OF TEMPORARY PRESENCE AND SPACE ……………………….7

6. INTERNATIONAL PRINCIPLES CONCERING INTELLECTUAL PROPERTY..8

7. CONCLUSION……………………………..………………………………………..10
INTRODUCTION:

Despite the fact that space technology is always one of the most advanced technical area, and
outer space activities are, in fact, the fruit of intellectual creations, it is only in recent years
that intellectual property protection in connection with outer space activities has raised wider
attention. One of the reasons is that the space activities are increasingly shifting from state-
owned activities to private and commercial activities. These activities include remote sensing
from space, direct broadcasting and research and manufacturing in micro-gravity
environments. Not only is the new participation of commercial sector increasing, but the
privatization of entities is equally increasing as in the cases of Inmarsat or Intelsat. In
general, those non-governmental entities are more conscious of their “property”, both in
tangible and intangible forms. Further, due to financial and technical resources which are
required to realize space projects, collaboration with the private sector is not alien to many of
the state-owned space agencies today. Licensing contracts are concluded between
governmental space agencies, between governmental agencies and private companies and
between private companies. Such private financing has to be motivated by the expectation
that the R&D investment could be recovered in the future. Thus, the acquisition and
protection of intellectual property rights would have a positive effect on the participation of
the private sector in the development of outer space activities and on further development of
space technology in general.

Space Tourism in India Space activities in India are developing very rapidly. Even though
there is a void of space legislation the activities pertaining to the same are effectively
organized under the auspices of the Indian Space Research organization (ISRO). The launch
of Chandrayan -I is the landmark in the space activities undertaken by India. Space tourism in
India has attained a certain degree of excitement and glamour in a very early stage. Quite a
number of prospective space travellers have been evincing keen interest on space travel. This
is also evidenced by the number of people registered for India’s maiden space flight “Virgin
Galactic” space flight in the near recent future. Some argue that, in the absence of an explicit
legal provision, the applicability of national intellectual property law on space objects
registered by that State is doubtful.1

1
Anna Maria Balsano, “Industrial Property Rights in Outer Space in the International Governmental Agreement
(IGA) on the Space Station and the European Partner”, 35th Colloquium on the Law of Outer Space,
Washington D.C., August 28 to September 5, 1992; Glenn H. Reynolds, “Legislative Comment: The Patents in
Space Act”, 3 Harv. J. Law & Tec 13, Spring, 1990
With the space tourism industry gearing up for flight within the next two years, accredited
space travel agents are also getting ready to pitch the wonderment to potential space tourists
Richard Branson’s Virgin Galactic, a global commercial space tourism group, has entered the
Indian market with an eye on wooing Indians into space. Virgin Galactic has opened its office
in New Delhi and will act as a facilitator for Indians to book tickets to space. The spaceship
will be launched at a height 50,000 feet above earth and, on release from the mother ship, will
take a vertical trajectory at three times the speed of sound. Carolyn Wincer, head of astronaut
sales of Virgin Galactic, told the press that nearly 300 people, including four Indians, have
bought tickets to travel on the spaceship. Outer space activities are characterized, in
particular, by the utilization of sophisticated technology in respect of which protection of
intellectual property plays an important role, and by the fact that national law, in principle,
only applies to the territory (including air space) of a country and not to outer space. In
conjunction with its Futures Project on the Commercialization of Space and the Development
of Space Infrastructure, the Organization for Economic Co-operation and Development
(OECD) requested World Intellectual Property Organization (WIPO) to submit an issue paper
concerning intellectual property and space activities. This paper is prepared by the
International Bureau of WIPO in response to that request in order to illustrate how
intellectual property issues interrelate with outer space activities.

RESEARCH OBJECTIVES:

•To understand the nature of patent, the reasons for protecting them and the practical
challenges in identifying and protecting them.

•To know how to develop an effective patent protective management program with respect to
space technology

•To understand what is meant by misappropriation of a patent with respect to space

technology and how to prevent such misappropriation.

•To know how to take various types of suitable actions to prevent violation of patent rights
with relation to space technology.
RESEARCH METHODOLOGY:

The researcher had selected the problem with a great interest keeping the significance and
impelling need of it in the intellectual Property Rights Protection in the present conditions,
circumstances, and socio-legal in mind. However, the methods adapted to carry out the
research work are in doctrinal in nature, descriptive, structural and functionally analytical.
The relevant material is collected from the primary and secondary sources. The material
information’s are collected from legal and non-legal sources like international legal
instruments, statute, judgements, books of legal experts of national and international repute,
newspapers, law journals, law reports, internet references andopinions of research
scholars, academicians and other experts who have dealt with this subject are used as a real
contribution to this work.

Role of intellectual property in the area of space activities:

Another reason why intellectual property has become an issue in recent years relates to the
globalization of space activities. As it is the case with the International Space Station (ISS),
more and more space activities are operated under international cooperation schemes, which
include various players under different constituencies from different countries.
Consequently, there is a need for a simple, uniform and reliable international legal
framework. Although national intellectual property laws are relatively well harmonized,
different national laws still apply different principles. Yet another reason may be that, due to
the advancement of space technology, new business possibilities are emerging. For example,
although it is still a dream for the general public, the development of space transportation
technology have been clearing the way to space tourism. 2Up to now, when discussing
intellectual property matters in connection with space activities, the primary concerns have
related to patent protection of inventions created or used in outer space, or copyright
protection of databases using data acquired through space activities. If the space tourism

2
Arnold Vahrenwald, “Industrial Property on the Space Station FREEDOM”, E.I.P.R., Vol. 15, No. 9, 1993, at
footnote 22 referring to Beier and Stauder “Weltraumstationen und das Recht des geistgen Eigentums”, GRUR
Int. (1985)
becomes reality, the protection of trademarks and industrial designs in outer space may also
3
become an important issue.

Doctrine of Temporary Presence and space inventions:

Once this is established, a step can be taken ahead in the direction of strengthening the patent
laws related to space inventions. The Doctrine of Temporary Presence is one of the
exceptions to Patent Infringement which has been incorporated in the Indian Patent Act under
section.It allows a vessel or aircraft registered in foreign country to use a protected invention
on board in case of necessity or for the purpose of construction or working of the vehicle
while being within the Indian territories. This act does not amount to infringement. At
present, it is not clear whether it relates to the space inventions. But on the parallel approach,
the same can be applied on the space-related inventions in order to curb chances of any
urgency or other necessity demanding the use of protected invention in a well-developed
patent regime. It should be noted that many national patent laws take into account the ethical
concerns. They contain a provision according to which inventions the commercial
exploitation of which is necessary to protect public order or morality are not patentable.4

International principles concerning intellectual property with relation to patents:

(1) Paris Convention for the Protection of Industrial Property

The Paris Convention for the Protection of Industrial Property (hereinafter referred to as the
“Paris Convention”), which is the basic international treaty in the field of industrial property,
does not expressly consider the question of inventions in outer space. However, it contains
provisions establishing the national treatment principle (Article 2), the right of priority

3
Petr Lála, “The United nations Register of Objects Launched into Outer Space”, Joint United
Nations/International Institute of Air and Space Law Workshop on Capacity Building in Space Law, The Hague,
November 18 to 21, 2002
4
In Article 27.2, the TRIPS Agreement provides that “members may exclude from patentability inventions, the
prevention within their territory of the commercial exploitation of which is necessary to protect order public
morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the
environment, provided that such exclusion is not made merely because the exploitation is prohibited by their
law.”
(Article 4) and common rules, including certain measures for the enforcement of intellectual
5
property rights, which all the Member States must follow.

As regards patents, patents granted in different Member States for the same invention are
independent of each other (Article 4 :independence of patents obtained for the same invention
in different countries). This means that, on the one hand, the granting of a patent for a given
invention in one Member State does not oblige other Member States to grant a patent for the
same invention; on the other hand, a patent for a given invention cannot be refused, revoked
or terminated in a Member State on the grounds that a patent applied for in another Member
State for the same invention has been refused or has lost its effect in the latter State. Article 6
provides a similar rule with respect to registered marks.

Of particular interest with respect to outer space activities is Article 5, which provides that
there is no infringement of the rights of a patentee in the case of:

(i) the use on board vessels of other countries of the Paris Union of devices forming the
subject of the patent in the body of the vessel, in the machinery, tackle, gear and other
accessories, when such vessels temporarily or accidentally enter the water of the said country,
provided that such devices are used there exclusively for the needs of the vessel;

(ii) the use of devices forming the subject of the patent in the construction or operation of
aircraft or land vehicles of other countries of the Paris Union, or of accessories of such
aircraft or land vehicles, when those aircraft or land vehicles temporarily or accidentally enter
the said country.

(2) Berne Convention for the Protection of Literary and Artistic Works

The Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred
to as the “Berne Convention”) is the basic treaty in the field of copyright and related rights.
As the Paris Convention, the Berne Convention does not expressly consider the question of
intellectual property rights in outer space. However, it contains provisions establishing basic
principles such as national treatment, the “independence” of protection and the principle of
automatic protection, i.e., copyright protection may not be subject to any formality.

5
The Preliminary draft Convention on exclusive choice of court agreements
(3) WIPO Copyright Treaty (WCT)

The WCT provides, among other things, for the protection of (i) computer programs,
whatever may be the mode or form of their expression, and (ii) the compilation of data or
other material (“databases”) in any form, which by reason of the selection or arrangement of
their contents constitute intellectual creations. In particular, Article 8 assures the authors’
right to enjoy the exclusive right of authorizing any communication to the public of their
works, including the making available to the public of their works in such a way that
members of the public may access these works from a place and at a time individually chosen
by them. This Article is also applicable to transmissions to and from a spacecraft.6

The main body of current international space law is contained in five international
agreements:

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and other Celestial Bodies (1967 Outer Space Treaty); Agreement
on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects launched
into Outer Space (1968 Rescue Agreement); Convention on International Liability for the
Damage Caused by Space Objects (1972 Liability Conventions); Convention on registration
of Objects Launched into Outer Space (1975 Registration Convention); and Agreement
Governing the Activities of States on the Moon and Other Celestial Bodies (1979 Moon
Agreement).7

None of those agreements contains a provision expressly dealing with intellectual property.

(1) Outer Space Treaty

Article I of the Outer Space Treaty provides the so-called “space benefits” clause according
to which the exploration and use of outer space should be carried out “for the benefit and
interests of all countries, irrespective of their degree of economic or scientific development,
and shall be the province of all mankind.” Further, it states that outer space should be “free
for exploration and use by all States without discrimination of any kind, on a basis of equality
and in accordance with international law” and that there should be “free access to all areas of
celestial bodies.” Article II provides for so-called “non-appropriation of space”, according to

6
The WIPO Arbitration and Mediation Center administers ADR procedures which are widely recognized as
particularly appropriate for technology and other disputes involving intellectual property,
7
Alain Pompidou, “The Ethics of Space Policy”, UNESCO, 2000
which outer space is “not subject to national appropriation by claim of sovereignty, by means
of use or occupation, or by any other means.”8

While non-appropriation of outer space has been agreed, Article VIII of the Outer Space
Treaty establishes the principle that the State of registration has jurisdiction and control over
space objects as well as personnel launched into outer space.

Recent activities relating to outer space and intellectual property

In 1997, WIPO conducted a study, with the help of consultants from Europe, Japan and the
United States of America, on the possible need for rules and/or principles for the protection
of industrial property, in particular inventions, which are created or used in outer space. The
discussion focused exclusively on international industrial property law questions. More
general international law issues, for example, the question of territory and jurisdiction, the
legal issues relating to the cooperation activities between space faring nations, and the legal
quest.

In July 1999, a Workshop on Intellectual Property Rights in Space was held in conjunction
with the Third United Nations Conference on the Exploration and Peaceful Uses of Outer
Space (UNISPACE III), which was a major intergovernmental conference for the purposes of
creating a blueprint for the peaceful use of outer space in the 21st century. The
recommendations made by the Workshop were amended and adopted by the plenary of the
Conference, and included in the Report of the Conference. The World Commission on the
Ethics of Scientific Knowledge and Technology (COMEST), which is an advisory body of
United Nations Educational, Scientific and Cultural Organization (UNESCO), looked into the
issues relating to the ethical dimension of outer space activities, and adopted
Recommendations at its second session, held from December 17 to 19, 2001.9

8
René Oosterlinck, “The Intergovernmental Space Station Agreement and Intellectual Property Rights”, Journal
of Space Law, 1989, p.31
9
In accordance with Article 9 of its Statutes, the COMEST submitted the Recommendations on the Ethics of
Outer Space to the Director General of UNESCO. The Director-General transmitted the results of the
COMEST’s work to the General Conference of UNESCO, which took note with interest of the Recommendation
in October 200
CONCLUSION :

The conflicts between Intellectual Property Laws and Space Law regime should be resolved
through a harmonized system which could be developed by the international IPR and Space
Law community under the auspices of UN Bodies like United Nations Committee on the
Peaceful Uses of Outer Space (UNCOPUOS) and the WIPO, said harmonized system of IPR
regime for the outer space should fully comply with the basic principles of international space
law and such other international obligations. Further it is strongly recommended that the
harmonized system takes into account the interests of developing countries as well and
promotes moral and ethical usage of the outer space for the benefit of the entire humanity. A
preferable solution would be “Globalisation” of the jurisdiction in outer space activities, i.e.
A single worldwide IPR legislation for space activities. In the absence of legal certainty as to
how the territorial jurisdiction under intellectual property law could apply to extraterritorial
activities on a spacecraft which is subject to nationality jurisdiction, in practice, registered
space objects are treated as quasi-territory for the purposes of intellectual property under a
number of international agreements concluded with respect to international space projects.
This leads to a patchwork of national intellectual property laws each of which could only be
applicable on a relevant registered object. A simple and reliable international legal
framework would facilitate maximizing the collective utilization of public and private
resources in the area of space technology for the benefit of all nations.

It means that, in the case of international cooperation activities, a complex segmentation of

the international space station, or any other future international platform, cannot be avoided.
Further, the lack of a global agreement leads to the situation that an agreement would have to
be concluded among the parties in each single case of international cooperation. This could
be imagined as a treaty under auspices of an extension of the 1967 Outer Space Treaty. This
could be an international board of arbitration, similar to that which is already operated under
the auspices of WIPO. This board could be empowered to arbitrate on matters such as space
patent validity and compatibility with international law, alleged infringement, fair and
reasonable conditions of licensing to third parties, etc.