The Hitchhiker’s Guide to Outer Space Patents

Abstract

Investment in space technologies has predominantly been a prerogative of the public sector. Now increasing privatization and commercialization of space markets is creating opportunities to develop new space applications. The potential to commercially leverage intellectual property is a motivating factor behind this private financing and plays a key role in helping private companies secure returns on investment. International space law treaties remain silent on the notion of intellectual property and intellectual property treaties lay heavy emphasis on territorial application of patent law, thereby creating a theoretical disconnect. Legal machinery drafted for activities on board the International Space Station (ISS) and the US Patents in Space Act serve as good starting points in bridging the gap between patents and space law by advancing the concept of quasi-territoriality. However, in doing so, they expose the space-patent market to possibilities of forum shopping, flags of convenience and race to the bottom scenarios. Lack of a reliable legal regime to address issues of patent infringement can negatively influence the future development of the space sector. The resolution to this problem is a new international legal framework that establishes uniform conditions for enforcement of space-based patents. outer space, patents, space commercialization, extra-terrestrial jurisdiction