With World Space Week this week, we decided to review the atmosphere around patent protection of space technology. We all know that space technology is advancing rapidly and human activity in outer space is more common than ever before, so this is becoming an increasingly significant issue.
A patent is a territorial right, meaning that it applies only to the territory - including the air space - in which the patent is granted. But, given this, can a patent be used as protection for an invention whose commercial exploitation requires that it is made, used or sold in outer space?
This is becoming an increasingly important question as we see human space activity on the rise, with ever greater presence and research aboard space stations, more and more satellites, and the increased opportunity of space tourism with companies such as Virgin Galactic. Therefore, the question to ask is, "Whose territory is space?"
The Outer Space Treaty of 1967 (Article 8) states: "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." Therefore, it could be argued that the patent law of the state in which the space object was registered and from which it was launched applies to an invention that is subsequently made, used or sold on that space object.
Interestingly, U.S. patent law has an explicit provision along these lines for inventions in outer space under Title 35, Section 105 of the U.S. Code: "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."
This suggests that unauthorised manufacture, use or sale of a patented invention on a space object under the jurisdiction of the United States will be treated as if it were an infringement under U.S. patent law. After all, when a space object is launched into Earth orbit or beyond, the launching state must register the space object and so the jurisdiction of the space object would be retrievable. There even exists a provision for cases where there are two or more launching...