DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

Air and Space Law

Seminar Paper
SCOPE OF PATENT RIGHTS IN THE OUTER
SPACE

SUBMITTED TO: SUBMITTED BY:

DR. VIKAS BHATI SAHARSH CHITRANSH

ASSISTANT PROFESSOR (LAW) B.A.LL.B. (Hons.) X SEM.

Dr. RMLNLU ENROLL. NO. 170101112

 ACKNOWLEDGEMENT

Expressing gratitude is a pleasant but difficult job when one sincerely tries to put them in
words. To list them all is not practicable, even to repay them in words is beyond the domain
of my lexicon.

I am highly indebted to Dr. Vikas Bhati, our Professor and Guide of the subject for firstly,
allowing me to take this topic just on the ground that I have interest in the topic, secondly, for
providing me outstanding assistance at every step of my preparation of this project. I am
extremely thankful to him for his constructive criticism and helpful suggestions. His constant
encouragement helped me to work harder.

Further, I would like to give my sincere gratitude to the Madhu Limaye Library, Librarian sir
Mr. Manish Bajpayee and his team for helping me in finding material on the topic. Without
their support this project could not have been completed because finding detailed material on
this topic is not easy task.

I would also in cryptic gratitude toward my parents who ensure my capabilities and raise
my confidence, also maintain mental and physical balance.

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 TABLE OF CONTENTS
ABSTRACT................................................................................................................................................................... 3

INTRODUCTION........................................................................................................................................................... 4

LAW GOVERNING OUTER SPACE.......................................................................................................................... 5

LAW GOVERNING PATENTS.................................................................................................................................... 8

THE DISPUTE............................................................................................................................................................ 10

THE JURISDICTION IN VIRTUE OF INFRINGEMENT OF PATENTS............................................................... 13

THE PATENT LAW OF THE UNITED STATES IN THE OUTER SPACE.......................................................... 16

ISA MODEL.............................................................................................................................................................. 17

CO-OPERATION BY THE INTERNATIONAL BODIES........................................................................................ 19

INTERNATIONAL BODY OR AN AGREEMENT FOR THE ADMINISTERING PATENT RIGHTS IN OUTER

SPACE......................................................................................................................................................................... 21

INDIAN CONTEXT.................................................................................................................................................... 22

CONCLUSION............................................................................................................................................................ 23

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 PATENTS: A DEBUTING SATELLITE IN THE OUTER SPACE

ABSTRACT
With the increase and emergence of space-age technologies and concerned advent of
satellites and space systems has raised the opportunities for the private sector to lay their
hands on the outer space, also the investment of the private players have become important
by looking at the cost of such space explorations. This might result as a challenge for
intellectual property rights, issues regarding copyright, patent, and secrets of trade will be
forthcoming by the commercialization of space as the private players will always be
concerned about their property. The law which is protecting the space technology in both
national and international aspect is still in developing stage, though; we have Outer Space
Treaty which still needs more development to tackle with the issues which have started
arising now. Then we also know that Intellectual property rights are based on strictly
territorial approach, which is incompatible with the space activities as outer space fall
outside the arena of the sovereignty of different countries and currently there is no global
form of intellectual property law which can give the protection to the right holder without
territorial limitation which comes up with whether we can apply national laws to the outer
space, which then result in other jurisdictional issues. But yet no major issue has been
reported so it is the best time to deal with all the complications present in the patent regime
and respond to all the issues relating to patents in outer space. This paper will be confined to
the issues involved with patents regime.

Keywords – Outer Space, Intellectual Property, Patent, Jurisdiction

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 INTRODUCTION

Since the start of 20th century, we humans have seen a rapid change in technology
which includes both the Intellectual Property Regime and also the Outer Space, which have
further led to the growth in laws governing both the subjects. In the second half of the
twentieth century, we saw a huge change when the Man landed in the moon and how the
satellites were launched to the outer space. This has now led to opening the gates for the
private players to come forward to make the investment in the outer space activities. But we
then we need to look that International agreement tells us that no one can claim the celestial
bodies or outer space as their own 1. Now, this brings the hurdle for the investment of these
commercial private players. Such provisions hinder the growth in the outer space as
Commercial Private players cannot live without getting the Intellectual property rights being
given to them, or in easy words, we can say no investment of the private player can survive
without allocating them IPR protection.

This will further lead to the overlap of the Intellectual property laws with that of Laws
governing Outer Space. The paper will look upon the very conflict between Intellectual
property rights and outer space. We should know that current Laws regarding the same
doesn’t help us to solve the conflict and the same problems have been further elaborated in
this paper. We will also be seeing the current legal framework which deals both the
Intellectual property Rights and the Outer Space, also we will be looking at how territorial
extension of the Intellectual Property Rights in the outer space has been regulated.

1
Art. II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies (1967), 18 UST 2410, 2413 (1969) (hereinafter Outer Space
Treaty).

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 LAW GOVERNING OUTER SPACE

There are numerous treaties which govern the property rights in outer space.2 We
need to remember that the Outer space Treaty doesn’t allow nations to put a claim over the
celestial bodies or space. Henceforth which means that the government can neither itself nor
grant permission to private bodies to over the territory. 3 This international agreement portrays
that these agreements regarding the outer space should be used and are made for the benefits
of Human and that has been the continuous approach of these agreements.

This has led to the debate over the two topics of legal jurisdiction i.e. “Terna
communis” & “Tera Nullius”4 among the different scholars of law. When we talk about Tera
Communis, it refers to notions which talk about the public domain and the mankind which
comprises of the common heritage while we talk about Tera Nullius, it refers to a notion
about the property which is without an owner in the context of international law and such
property cannot be claimed by any state and this property will not be subject of any state.

One of the major development of the outer space treaty i.e. Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies 1967, was that every state has the full access of the space
and there will be no disparity over the same, every state will have the access to the resources
available in the space.5 These treaties relating to the outer space doesn’t allow the nation to
claim the sovereignty over these celestial bodies. The principle of “Non- Appropriation” has
been subsequently incorporated along with these outer Space Treaties. The same principle
also doesn’t allow the nations to put their claim over these outer space celestial bodies & the
resources present in the outer space. This very article also put forward the idea of the Outer
Space Treaties regarding the usage of resources among all the nations regardless of their

2
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including
the Moon and Other Celestial Bodies (1967) 18 UST 2410, 2413 (1969); Agreement on the Rescue of
Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), 19 UST
7570 (1969); Convention on Registration of Objects Launched into Outer Space (1975), 28 UST 695 (1978);
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979), 1363 UN Treaty
Ser 3 (1984) .
3
Art. II, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies (1967), 18 UST 2410, 2413 (1969).
4
LOTTA VIIKARI, FROM MANGANESE NODULES TO LUNAR REGOLITH, Faculty of Law, University
of Lapland, Rovaniemi (2002).
5
Skip Smith, A Space Law Primer for Colorado Lawyers, 47-MAR COLO. LAW. 51-52 (2018).

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structure and position.6 Many scholars have put forward their view whether the Principle of
Non-Appropriation is applicable over the Private Commercial bodies. The Principle of Non-
Appropriation can be easily applied over the tangible structures namely which might
comprise of the resources and the territory. Certain suggestions have been put forward
regarding the intangible property, whereby IPR rights have not been able to come under the
purview and ambit of the principle of Non-Appropriation. 7 The same has been confirmed in
the Agreement regarding the International Space centre.8

Now, these have led us to look at the Moon Treaty, The Moon Treaty has further
elaborated the rights and duties in the International arena which previously came in Outer
Space Treaty. We will now bring our attention to the Article XI of the same Moon Treaty
which specifically prohibits and forbids the rights of the private commercial players to put
forward their ownership claim of any part of the Moon as well as over any part of the lunar
resources. The same article XII also says us for the establishment of the “international
regime, including appropriate procedures, to govern the exploitation of the natural resources
of the moon”.9 The Moon Treaty have specially specified have already declared that Moon
will be the common Heritage for all Mankind.10 The principle can clearly show the intention
that even if the nations or its individuals can employ certain technology to proceed & exploit
for the resources, such resources shall be used by all the nations for the benefit of the
mankind.11 This will surely lead to the discouragement for the commercial players who are
interested to invest their technology for such resources and this will eventually lead to the
slow progress towards the exploitation and procurement of such resources. This is one of the
major reason why many countries have not come forward to sign this particular treaty.
Neither many of them have rectified this Moon Treaty.12 Some theories have suggested that

6
Steven Freeland, Symposium: Issues in Space Law: Up, Up, and... Back: The Emergence of Space Tourism
and Its Impact on the International Law of Outer Space, 6 CHI. J. INT'L L. 1, 11-12 (2005).
7
Gabriel Lafferranderie, Basic Ptindpa/s Governing the Use of Outer Space in Future Perspective, in
ESSENTIAL AIR & SPACE LAW: CURRENT PROBLEMS AND PERSPECTIVES FOR FUTURE
REGULATION 5,16 (Marietta Benko & Kai-Uwe Schrogl eds., 2005), at 13.
8
Agreement Among the Government of Canada, Governments of Member States of the European Space
Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the
United States of America Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 1998
UST. LEXIS 212.
9
Art 11, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1363 U.N.T.S.
21.
10
Art 11(1). Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1363
U.N.T.S. 21.
11
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363
U.N.T.S. 21, Art.l.
12
John S. Lewis, Christopher S. Lewis, A Proposed International Legal Regime for the Era of Private
Commercial Utilization of Space, 37 GEO. WASH. INTL L. REV. 745, 753 (2005).

Page | 6
International Community outrightly rejected this Moon treaty on the face because of the
notion where this treaty rejects all kind of ownership by the private players which will
eventually lead to non-procurement of investment of the Private players for the exploration in
the space.13 This has clearly presented a picture in front of us that when we talk about space
exploration both the players i.e. Private and Public plays an important role in the procurement
of the resources.

This is the reason that the only 19 Countries are the party to the Moon agreement,
where only Eleven Country have signed the Moon treaty and lastly, only 7 countries have
rectified this very treaty. This has to lead us to think and question ourselves regarding
implementation the principle of common Heritage of Mankind which is present in the Article
XI of this Moon Treaty.

John S. Lewis, Christopher S. Lewis, A Proposed International Legal Regime for the Era of Private
13

Commercial Utilization of Space, 37 GEO. WASH. INTL L. REV. 745, 753 (2005) at 754.

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 LAW GOVERNING PATENTS

“Intellectual Property Rights” could be called as an arrangement which gives the

protection to the Personnel which he has procured by his/her intellect. The same has been
defined by the WIPO i.e. World Intellectual Property Organisation in one of their
conventions where they said that Intellectual Property rights include "literary, artistic and
scientific works" and "inventions in all fields of human endeavour’'.14

When we talk about the Private Player’s exploration of the outer space, the
intellectual property which will come in the picture will be the ‘Industrial’ form of
Intellectual Property. Why it is important because it protects over to the inventions procured
by the industry through their technology by their research and development. 15 One of the
major factors for the establishment of such space where private players can explore will be
where their inventions can be granted Patents.16 Granting of patents depends on the principle
where every invention should be protected to stimulate Intellectual creations. 17 The patents
have given monopoly access to the holder of the Patents Rights where he has used his / her
intellectual labour.18 This is done so that the people who have invented the invention can
carve out the benefits by procuring the exclusive rights over his invention for a certain
amount of time. Also, we need to know that the nature of the Patents is “strictly territorial”
i.e. the rights of the patent holder is only limited to the jurisdiction of the state which has
provided the patent to him. We need to know that the rules of patents don’t allow or go
beyond the border of the state. Although several international conventions over the
Intellectual Property rights have been organised still Intellectual Property Rights remain a
domestic right. The Patents are granted by the different government of each particular state.
Despite these conventions, we are still looking for the way for the enforcement of these
patents at the international level.19

14
Art 2(viii), Convention Establishing the World Intellectual Property Organization (14 July 1967) 828 UNTS 3
15
World Intellectual Property Organisation, WIPO Intellectual Property Handbook: Law, Policy and Use,
(March 15, 2015), http: //www.wipo.org/ about-ip /en /iprm/.
16
Marguerite Broadwell, Intellectual Property and the Economic Development of the International Space
Station, Speech to the Space Technology and Applications International Forum (2000).
17
Creative Commons ,TAKING IT GLOBAL, http://issues.takingitglobal.org/intprop?gclid= CLyp5
mivpACFQssewod8zrEPQ (March 20, 2015).
18
Alejandro Piera, Intellectual Property in Space Activities: An Analysis of the United States Patent Regime,
XXIX AIR & SPACE L. 42, 46 (2004).
19
Christopher De Cluitt, International Patent Prosecution, Ligation and Enforcement, (1997) 5 TULSAJ OF
COMP AND INT'L L 135, 144-146.

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 Though there have been certain development of Intellectual property rights in
international law especially Patents.20 In the year 1967 for the first time, the World
Intellectual Property Organisation said to govern certain Intellectual property laws and the
same for its enforcements. Then TRIPS i.e. Trade-related Aspects of Intellectual property
Rights also came up with the certain guidelines regarding the patent enforcement. 21 TRIPS
have its own “Most Favoured Nation” clause which talks and led us to the non-discrimination
which will be based on the state where such patent was registered and created. 22 Although we
need to remember none of this treaty will be applicable when we talk of space activities.

20
World Intellectual Prop. Org. [WIPO], Intellectual Property and Space Activities, at 5-7 (Apr. 2004),
www.wipo.int/patent-law/en/developments/pdf/ip_space.pdf.
21
Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 4, 1994, 1869 U.N.T.S. 299, 33
I.L.M. 1197; Intellectual Property and Space Activities, supra note 4, at 6–7.
22
World Intellectual Prop. Org. [WIPO], Intellectual Property and Space Activities, at 7 (Apr. 2004),
www.wipo.int/patent-law/en/developments/pdf/ip_space.pdf.

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 THE DISPUTE

The concerns which have led to this dispute and the conflict is because of the
versatility of the applicability and the origin of the law governing the outer space with that of
the patents regime. Talking about the patent law as we have already discussed above that
patent is domestic in nature and there have been continuous efforts for creating an
International model for patents which has not been achieved yet.23 The patent law of each
state is different because of the history, its social notion, the economic condition of the state.
In the last two-three decades which have seen a tremendous boost in the trade and commerce
with the help of WTO i.e. World Trade Organisation and other trade organisational which
works at regional level which is leading us to the pat of harmonization of Intellectual
Property rights between the states.24 Talking about the rights relating to the intellectual
property rights in the outer space is beyond the jurisdiction of these states both in the
application and its origin.25

The three major issues or the consequences which are present in the root of the patent
regime are, Firstly, The patent can only be protected in the jurisdiction where the patent has
been registered. Secondly, the law which will be applicable will be of the state where the said
patent has been infringed, Third, over the jurisdiction of the state where such patent has been
infringed.26 But at the same time when we talk about the law governing the outer space, it is
recognised by the several international conventions and form a uniform law for the protection
of outer space where it takes care of everyone by the principle of common heritage which is
opposed to what regime we see when we talk about the patents.27

The rights which are conferred by the intellectual property rights are based on the
approach which is “Strictly territorial” in nature but at the same time when we talk about the
nation present in the outer space is that the activities and the exploration carried out by the

23
Anna-Maria Balsono & Bradford Smith, Intellectual Property and Space Activities: A New Role for
COPUOS?, in OUTLOOK ON SPACE LAW OVER THE NEXT THIRTY YEARS 363 (Gabriel
Lafferranderie & Daphne Crowther, eds., 1997).
24
Takeshi Isamaya, Towards Desirable IP Systems ?- Taking the Patent System as an Example, Chairman's
Note for the Informal Meeting of the Heads of Patent Offices in Developed Nations, May 19-20, 1999 available
at http://www.eps.nagoyau.ac.jp/examin/991d/991dej.html.
25
Ruwantissa Abeyratne, The Application of Intellectual Property Rights to Outer Space Activities, 29 J.
SPACE L. 1 (2003).
26
Sandeepa Bhat B, Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. SPACE L.
1 2010.
27
Sandeepa Bhat B, Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. SPACE L.
1 2010.

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countries will be for the benefit of the Human mankind heritage. 28 This theory of the outer
space for the benefit of mankind does not go along with the regime of Intellectual property
rights. These have led us to the question. Whether patents can be granted for the invention
created in the outer space? This is not at all easy to combine and bring together both the
ideologies and theories together. But at the same time we need to look it is very important for
the protection of Intellectual property rights for the growth and development of such private
players in the outer space. At the same time, it will be harmful to the private players and both
for the development of outer space if these private players will lose interest in the outer
space.29

This has led us to another question whether it is relevant to extend the scope of outer
space principles that the investor will start depriving of the benefit arising from his/her
intellectual labour? We can answer this question by saying No. now we need to look what is
the reason behind such lagginess and the dispute behind such space treaties, the reason could
be the time when the Outer space treaties were being formulated, at that time all the countries
were just starting to go into space, also the concept of Intellectual property rights and the
patents were not existing at such level where it can be recognised in the context of Outer
Space. At that time States were the only subjects of which can explore the outer space during
that point of time and therefore the rights which were formulated at that time were Public in
nature.30 So, when such outer space treaties were formulated no one ever thought or gave
heed to the needs of the private players which might arise in the future course of time. 31 But
the Outer Space treaty still gave certain rights over the jurisdiction in space regarding the
registries of the spacecraft and the spacecraft itself. The same has been discussed in article VI
of the Outer Space Treaty which states “bear international responsibility for national
activities in outer space, whether such activities are carried on by governmental agencies or

28
Sandeepa Bhat B, Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. SPACE L.
1 2010.
29
Anna Maria Balsano, Intellectual Property within Public International Research Organizations: The Example
of the European Space Agency, The Proceedings of the 36 ' Colloquium on the Law of Outer Space, IISL 3
(1993).
30
S. G. Sreejith, The Pertinent Law for Outer Space Related Intellectual Propety Issues: An Odyssey into
TRIPS, 45 INDIAN J. INT'L L. 180, 183 (2005).
31 Christopher Miles, Assessing the Need for an International Patent Regime for Inventions in Outer Space, 11
TUL. J. TECH. & INTELL. PROP. 59 2008.

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by non-governmental entities”. The treaties present for the outer space regime for at all
inclined for the protection of the rights of the private parties.32

With the continuous growth of the Private Parties which are looking for the ways to
invest in the space activities, there are big challenges which have arrived in front of us to
maintain the balance of the rights of the private parties and the rights talks about public
domain. If we will not allow the rights to these private players, they will lose their interest
and will not be encouraged to spend their investment in the space activities which will surely
be a big hit for our technological developments in the outer space. If International
organisations can find a certain solution both the parties will need to compromise in certain
aspects.

Christopher Miles, Assessing the Need for an International Patent Regime for Inventions in Outer Space, 11
32

TUL. J. TECH. & INTELL. PROP. 59 2008.

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 THE JURISDICTION IN VIRTUE OF INFRINGEMENT OF PATENTS

Another major issue concerning the Patents in the outer space is regarding the
measures available if the patent has been infringed in the outer space. For this, we need to
remember that the branches and the roots of the patent are only restricted to the jurisdiction of
states which the patent has been registered. Also, we have already discussed above that in
case of patents infringement, the court where the infringement took place will have the
jurisdiction, & the law applicable in the case of the infringement will be of the state where
infringement has happened. As no state have a claim over the outer space the major questions
which arrive in front of us is regarding the jurisdiction and the applicable law which will be
applied in case of the infringement of the patent in the outer space. Thus this ignores the
extraterritorial nature of the patents in outer space, but the same time state will have the
jurisdiction over its objects which are sent in the outer space. 33 The arena and the gates of the
jurisdiction in outer space are not just confined to the objects sent to the outer space but also
it gets to extend to the persons sent in the outer space or any celestial body. Which then
concludes the state which has the registry of the object sent to the over space will also have
the jurisdiction over the people even they are outside the space vehicle. 34 Therefore the easy
answer for the issue will be to bring the patent regime applicable to that of the jurisdiction of
state objects of the state of registry. Hence any infringement of any patent in outer space
either on Moon or any other Celestial body will come under the jurisdiction of the state where
the space object is registered. 35 But this type of jurisdiction will also come several issues, Art
VIII of the outer space treaty which gives the certain jurisdiction to the space objects
registered in the state and the personnel going in space object will bring an issue where the
space station is registered with another state while the vehicle carrying the personnel
conducting experiments and inventions is registered in another state, this can bring a
jurisdictional issue in front of us or lead to the issue of multiplicity of the jurisdictions. Other
issues will arise when the person in space objects belong to different states or belong to many
other space stations. Therefore the solutions regarding space object registration will not be

33
Art VIII, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
34
Sandeepa Bhat B, Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. SPACE L.
1 2010.
35
Sandeepa Bhat B, Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. SPACE L.
1 2010.

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able to answer the question which we asked and it may even lead to many more jurisdictional
conflicts between the states. 36

Let us understand the issue with an example;

The station i.e. certain space station on the certain celestial body is registered with the
state of B and the space object taking the personnel who are responsible for conducting the
experiments and the inventions are registered with the state of Z. When we will apply Article
VIII of the Outer Space treaty, state of B will be responsible for the jurisdiction of the space
station. At the same time, the personnel who have come with the Space object whose registry
is with the state of Z, therefore, state of Z will have the jurisdiction over these astronauts? We
know that Article VIII gives personnel jurisdiction which will apply to its person in the outer
space. The same problem will arise when people will belong to different space stations. This
will lead to multiplicity of the jurisdictions.37

Similarly, as the inventions which are invented in the space, the protection over the
patent which is brought in the outer space is ambiguous and is full of uncertainty. 38 Because
of the unavailability of any common international patent law, it is highly ambiguous whether
the patents brought in space will be protected against any infringement of the same patent in
the outer space.39 Additionally, the current regime of the patent law doesn’t give any
protection over the patented invention in the celestial bodies or in the outer space. 40

A launching state is defined in the Registration Convention and it has been segregated
in two parts; First, a state which launches or procures the launching of a space object.
Second, a state from whose territory or facility the space vehicle is launched in the outer
space. The language of the first point is very vague which then is leading the private
commercial players to escape from the liability and obligations which are present in the outer
space treaty. This is leading us to a situation where the private commercial party can
determine its jurisdiction or we can say it can opt for a different jurisdiction, whether at the

36
Imre Anthony Csabafi, The Concept Of State Jurisdiction in INTERNATIONAL SPACE LAW 112 (1971)
37
Imre Anthony Csabafi, The Concept Of State Jurisdiction in INTERNATIONAL SPACE LAW 112 (1971)
38
World Intellectual Prop. Org. [WIPO], Intellectual Property and Space Activities, at 22 (Apr. 2004),
www.wipo.int/patent-law/en/developments/pdf/ip_space.pdf.
39
World Intellectual Prop. Org. [WIPO], Intellectual Property and Space Activities, at 13-14 (Apr. 2004),
www.wipo.int/patent-law/en/developments/pdf/ip_space.pdf . (Stating that in the absence of international space
patent law, patent enforcement depends on jurisdictional questions and varying national policies).
40
World Intellectual Prop. Org. [WIPO], Intellectual Property and Space Activities, at 11-14 (Apr. 2004),
www.wipo.int/patent-law/en/developments/pdf/ip_space.pdf. (stating that application of terrestrial laws to space
is unclear in an absence of explicit provisions extending them to space, and that no

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place where the space object is headquartered or wherever he chooses to register the space
object.

Hence, looking at the situations explained above, the issue regarding the jurisdiction
needs an answer on an immediate basis. Else, there might be a chance that the private players
might start using the vagueness and the loophole in the law for their benefit where they will
be able to opt for the pick and choose the method and pick the most lenient and most
favourable jurisdiction for them. 41

41
Bradford Lee Smith and Elisabetta Mazzoli, Problems and Realities in Applying the Protisions of the Outer
Space Treaty to the Intellectual Property Issues, in PROCEEDINGS OF THE FORTIETH COLLOQUIUM ON
THE LAW OF OUTER SPACE 169, 171 (1998).

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 THE PATENT LAW OF THE UNITED STATES IN THE OUTER SPACE

It was because of the mixed effect of both the Registration Convention and the Outer
Space Treaty which put pressure on certain states to elaborate their laws more briefly which
includes patent law too with their registered space objects.42 With respect to the Outer space
Treaty, United States of America, in 1990, they enacted 35 U.S.C. Sec. 105 which extended
the outreach of the patent law of the space objects registered with the United States of
America. Sec 105 says that "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 for the purposes of [U.S. patent
laws].”43 Hence, this section made it clear that any invention which is brought or first used
by the US registered space object will be considered to have been invented in the United
States of America.44 Along with that, any kind of patent infringement over the US registered
patent can be brought and put forward the case before the Hon’ble court in the United States.
This Particular Act, i.e. Patent in Space Act gave the sanction to the united states to form an
agreement with any member state of the Outer space treaty for the control and over the
jurisdictions of such patents which are on a space object registered in the registry of the
member state.45 Concerning its very scope and in the absence of influential case laws, the
applicability and the implementation of this act will always be questioning regarding the
benefits of this act.46

In the case of Hughes Aircraft Co. v United States47 the court tried to interpret the
provision of 35 U.S.C. Sec 105(a) regarding patents in space as “The legislative history
indicates that the purpose of the law was to clarify U.S. patent law with respect to its
extraterritorial application aboard U.S.-flag spacecraft, in order to encourage private
investment in research and manufacture conducted in outer space. Moreover, the legislative
history suggests that the Act was consistent with international law.”48

42
FRANCIS LYALL & PAUL B. LARSEN, SPACE LAW: A TREATISE 2 (Ashgate, 2009) at 124-27
43
Patents in Space Act, 35 U.S.C. 105 (1990).
44
Theodore U. Ro, Matthew J. Kleiman, Kurt G. Hammerle, "Patent Infringement in Outer Space in light of 35
U.S.C. 105: Following the White Rabbit down the Rabbit Loophole", 17 B.U. J. SCI. & TECH. L. 202 (2011)
45
Patents in Space Act, 35 U.S.C. 105 (1990).
46
Rachel B. Trinder, Recent Developments in Litigation, 5 J.L. & TECH. 45, 60–61 (1990) (predicting that
there will be a rise in space related litigation in future years due to technological expansion into space).
47
29 Fed. Cl. 197 (1993).
48
Hughes Aircraft Co. v. United States, 29 Fed. Cl. 197 (1993).

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 ISA MODEL

The five forces i.e. Japan, United States of America, Canada, Russia and the ESA i.e.
European Space Agency in the year 1998 together formed and entered in certain agreement
which was related with the International space station. 49 This very agreement has certain
clauses for the protection of Intellectual property rights.50

When the negotiation rounds of the IGA were happening, different definitions were
put forward in front of the parties regarding the definition of “Intellectual Property Rights”.
But in the end, the definition which was taken into consideration was the definition present in
Article 2 of the convention which established WIPO i.e. World Intellectual Property
Organization.51

W.r.t. to the Article 21 of the Multilateral agreement which we discussed above

formed by the 5 forces discusses the rights of the property in the space station and the main
focus is on the patents rights and for the protection of the patents. We can segregate the
International space station in certain parts and each one of which will be in the jurisdiction of
the participating nation. Art 21 suggests that each part will be of the member state where such
element is registered for the protection if the IPR. 52 Additionally, the disclosure procedures
and the conditions will be different to each state for granting of such patent, Article 21
prohibits the member states for granting any kind of procedural conditions regarding the
patents secrecy on the nationals of a different country. And one the major thing regarding the
provision of Art 21 is that it prohibits any kind of recovery of damages in case of any

49
Agreement Among the Government of Canada, Governments of Member States of the European Space
Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the
United States of America Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 1998
UST. LEXIS 212.
50
Art. 21, Agreement Among the Government of Canada, Governments of Member States of the European
Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the
United States of America Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 1998
UST. LEXIS 212.
51
R. Oosterlinck, The Intergovernmental Space Station Agreement and Intellectual Property Rights, 17J.
SPACE L. 23 1989.
52
Art. 21, Agreement Among the Government of Canada, Governments of Member States of the European
Space Agency, the Government of Japan, the Government of the Russian Federation, and the Government of the
United States of America Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998, 1998
UST. LEXIS 212.

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infringement.53ESA element has been formulated by the ESA member parties for intellectual
property rights.54

This very agreement between the different states is the example where these countries
have tried to address the difficulties faced by the commercial private players over the
property rights in the outer space. The way how the member parties have responded over this
agreement can be set as precedent and held as a landmark as it was able to find the answer of
two such principles, firstly, even though there exists the Strictly territorial principle of the
intellectual property rights, they were able to protect the IPR in the outer space & Secondly,
the contracting states of this agreement are ready to extend the territorial jurisdiction of the
Intellectual property rights in the outer space even though there is no internationally
recognised and accepted law for the protection of such property rights in space.55

'The Inter-governmental Space Station Agreement and Intellectual Property Right’

was the classical piece written by R. Oosterlinck, where he discussed:

"The whole fiction of Art. 21 is based on the registration of Space objects in

application of Art. VIII of the Outer Space Treaty. Some authors give an attributive
character to the registration, thereby admitting that through registration of a space
object by a State, laws of that State could be applicable on that space object. A
similar approach has been used for ships and aircraft whereby the registration
determines to some extent the applicable law. The rationale behind this approach is
that since ships and aircraft are moving from one State to another, the legal status
would change continuously. This approach, however, is debatable for objects
launched into outer space since contrary to what is the case for ships and aircraft, an
object in outer space does not cross an frontiers. But, according to others, the
registration is any declaratory in that the legal status on the pace object or personnel
thereof is not altered by the launching into outer space of this object”56

53
Christopher Miles, Assessing the Need for an International Patent Regime for Inventions in Outer Space, 11
TUL. J. TECH. & INTELL. PROP. 59 2008.
54
R. Oosterlinck, The Intergovernmental Space Station Agreement and Intellectual Property Rights, 17J.
SPACE L. 23 1989.
55
Christopher Miles, Assessing the Need for an International Patent Regime for Inventions in Outer Space, 11
TUL. J. TECH. & INTELL. PROP. 59 2008.
56
R. Oosterlinck, The Intergovernmental Space Station Agreement and Intellectual Property Rights, 17J.
SPACE L. 23 1989.

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 CO-OPERATION BY THE INTERNATIONAL BODIES

We will start with the contribution by the WIPO i.e. World intellectual property
Organisation, which is an international organisation regulated by the united nations and is
responsible for the protection and the promotion of the intellectual property rights through
assistance and collaboration of several state players and the different international
organisations present throughout the globe & it also try to administer and look after the
developments of the Intellectual Property Rights Law.57

A workshop on Intellectual Property rights in space was held in the July of 1999
along with the UNISPACE III i.e. Third United Nations Conference on the Exploration and
Peaceful Uses of Outer Space. The recommendations and the necessary changes which were
put forward in this conference was later amended and been adopted by the members present
in the conference. The necessary recommendation was that there was a constant increase in
the participation of the private commercial parties in the space activities and the International
Intellectual property rights should be harmonised in such way where such standards and
legislation can be brought upon where it may lead to the co-ordination between several
international players. This then becomes crucial as questions regarding the principle of
territorial nature of the Intellectual property rights, different legal aspects related with the
rights of the intentioned developed in the space along with the ownership of the outer space.
Such recommendations were put forward in front of the states present in the workshop w.r.t.
to such issues regarding such technology.58

WIPO keeps looking for the solution for different IPR issues arising out the
International level like one of them arises out of the Article 5 of the Paris Convention for the
protection of the Industrial Property, which gives the protection to the patent in case of
transportation, this is also known as Doctrine of Temporary presence. The example of the
same could be in case certain patented objects are being transported from the space station
where they were made to the foreign launching site location is a certain issue which needs
more clarifications and the answers. Though Art 21 of the Agreement regarding International
space station where this doctrine has been discussed but that is restricted to the Ships, land
57
Issue paperprepared by the International Bureau of WIP0, INTELLECTUAL PROPERTY AND SPACE
ACTIVITIES, April 2004 (available at http: //www.wipo.int/ export/ sites /www /patentlaw /en/ developments
/pdf/ip-space. pdf).
58
Discussion paper prepared by the International Bureau, MEETING OF CONSULTANTS ON INVENTIONS
MADE OR USED IN OUTER SPACE, Geneva, March 6 and 7, 1997.

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vehicles and Aircraft for a temporary visit in a foreign state, which then again needs further
elaboration.59

59
R. Oosterlinck, The Intergovernmental Space Station Agreement and Intellectual Property Rights, 17J.
SPACE L. 23 1989.

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 INTERNATIONAL BODY OR AN AGREEMENT FOR THE
ADMINISTERING PATENT RIGHTS IN OUTER SPACE

WIPO has presented an idea for setting up of Universal patent law and the laws
regarding the patent regime in the outer space.60 Such measures can lead to the formation of
space as a separate territory which can resolve the strictly territorial principle of the outer
space. Private commercial players who will be investing can just file one document and they
will get the patent which will be applicable in the space territory. A major issue why this has
not been made possible yet because of the traditional way of thinking of the different states
concerning their sovereignty.

Another solution which comes in from is the division of COPUOS i.e. United nation
committee on Peaceful uses of outer space.61 This committee will look after the grating and
looking after the patents which will be granted in respect of the space activities. The
committee will also have the jurisdiction regarding space patents claim and the disputes
arising over such space patents. One of the major positive advantages will be that COUPAS
have a vast experience in the context of outer space, therefore it will be able to deal with this
newly arose concept of the space patents.62 But the implementation of this solution will be
behind the clouds as certain nations will not want to submit their patents claim over to an
international United nation body. Along with that there already exists which is specialised in
the IPR rights which might reduce the interest of the newly distinguished body.63

60
World Intellectual Prop. Org. [WIPO], Intellectual Property and Space Activities, at 22 (Apr. 2004),
www.wipo.int/patent-law/en/developments/pdf/ip_space.pdf.
61
Juan Felipe Jiménez, Patents in Outer Space: An Approach to the Legal Framework of Future Inventions, 98
J. PAT. & TRADEMARK OFF. SOC’Y 458 (2016).
62
Juan Felipe Jiménez, Patents in Outer Space: An Approach to the Legal Framework of Future Inventions, 98
J. PAT. & TRADEMARK OFF. SOC’Y 464 (2016).
63
Marie Weisfeiler, Patent Law in Space, B.C. INTELL. PROP. & TECH. F. (Mar. 1, 2019),
http://bciptf.org/2019/03/patent-law-in-space.

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 INDIAN CONTEXT

India can be considered in one of the few countries who are actively participating in
the space exploration activities specifically Moon and Mars. But there has not been a
significant development in the legal framework. In the Year 2017, Space Activities Bill was
formulated, which has been playing with the dust between the files. Even though India is a
signatory to major contentions like the outer space treaty, the registration convention still we
have not yet rectified the same convention in our domestic and municipal law.

The ‘Indian Patents Act’64 is again restricted to the territorial nature of the
Intellectual property rights. Hence all the issues which we discussed in the initial part of this
paper will be applicable if the inventions are made by the Indian in the Outer space.

64
Patents Act, No. 39, Acts of Parliament,1970 (Amended 1999).

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 CONCLUSION

The status quo of the status of the Patents rights available in the outer space is
negligible except the one which came out from the ISS agreement between the five forces.
For the development of the outer space, we will need private commercial players and for that,
we need to protect their intellectual property rights. There is high time to look again at the
space as the “common heritage for the development of the mankind” which has remained the
fundamental principle of the outer space exploration for the decades.65

The ambiguity present in the current patent regime of the outer space has led to the
walking away of the private players for the space exploration over the Moon and the other
Celestial bodies. Even the Private players recognise that to "achieve harmonisation of the use
of [intellectual property right]s in space activities. It seems the only hope for such a situation
would be some sort of international legislation, uniform legislation must undoubtedly be
proposed on a global level.” 66 The individualistic national responses have been a major
source of contention in the patent regime. 67 The efforts which have been put forward by the
international community have also not gained any fruitful results. Hence, it is the need of the
hour when the certain International framework needs to come forward for the regulation of
the patents protection in the outer space. Lastly, if the international organisations can accept
the WIPO proposal or the proposal regarding united nation COPUOS, the same can lead to
the immense growth in the patent regime of the outer space.

65
Aakanksha Mishra, The Great beyond: Understanding Patents in Outer Space, 7 Indian J. Intell. Prop. L. 85
(2014-2015).
66
B L Smith "An Industry Perspective on Space-Related Intellectual Property Rights" (September 1995) 15
ECSL News (available at http://esapub.esrin.esa.it/ecsl/ecsll5/ecsll5sm.htm).
67
Sandeepa Bhat B, Inventions in Outer Space: Need for Reconsideration of the Patent Regime, 36 J. SPACE L.
12010.

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 BIBLIOGRAPHY

i) Books
a. Small Satellites - Regulatory Challenges And Changes (Irmgard Marboe ed.,
2016).
b. Ram Jakhu, Legal Issues of Satellite Telecommunications, the Geostationary
Orbit, and Space Debris, 5 ASTROPOLITICS 173, 175 (2007).

ii) Treaties/ Conventions

a. Convention on Registration of Objects Launched into Outer Space, Jan. 14,
1975, 1023 U.N.T.S. 15
b. Basic Texts of the International Telecommunication Union Adopted by the
Plenipotentiary Conference

c. Convention on International Civil Aviation, art. 3, para. (d), art. 10, Dec. 7,
1944, 15 U.N.T.S. 295.

d. Paris Agreement, art. 2, para. 1, Dec. 15, 2015.

iii) Article
a. Myres S. McDougal, Artificial Satellites: A Modest Proposal, 51 AM. J.
INT’L L. 75–77 (1957).

iv) Online Articles

a. Marco Villa, Builders of Satellites Large and Small Must Work Together to
Benefit Science, SPACE NEWS MAG., https://www.spacenewsmag.
com/commentary/builders-of-satellites-large-and-small%E2%80%A8-must-
worktogether-to-benefit-science.
b. Technology Quarterly: A Sudden Light, ECONOMIST,
http://www.economist.com/technology-quarterly.
c. Debra Werner, More Than Meets the Eye, SPACE NEWS MAG.,
https://www.spacenewsmag.com/feature/more-than-meets-the-eye.

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d. Jason Andrews, Time for Smallsats to Grow Up and Take Responsibility,
SPACE NEWS MAG., https://www.spacenewsmag.com/commentary/timefor-
smallsats-to-grow-up-and-take-responsibility/.

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