Space. The final frontier for patents?

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Anyone who has seen or read ‘The Martian’ will remember the scene in which the main character, stranded astronaut Mark Watney, styles himself as space pirate Captain Blondebeard, on the basis that maritime law applies in space. But, if space really is in international waters, how do companies go about protecting their space based innovations?

Patents are territorial. For a patent to be infringed in the UK there needs to be a UK patent. For a patent to be infringed in the US there needs to be a US patent. Maritime law, however, does not include any patent provisions.

If Mark Watney’s assumption about the legal nature of space is correct, this would presumably mean that, amongst the other more serious legal issues, a ‘space pirate’ would be free to infringe any patents it wanted. In reality, the question about what law applies regarding space is a little more complex, and there is some argument that a country’s legal jurisdiction may extend to spacecraft owned by the country.

If patent law does extend to space, then there are a number of different ways inventions could fall foul of patents. In the patent law of most countries, there are provisions that mean a number of acts can infringe a patent. For example, making or using a patented article can infringe a patent. If the jurisdiction of a country extends to space, the same law could apply.

Also, whilst there is no international patent law, there are a number of international treaties governing patents, and these could affect what protection patents can confer in space.

One such treaty is the Paris Convention, which dates back to 1883. In one of the later amendments to the treaty, a clause was added which provided an exemption for certain items from patent infringement. In particular, when a vessel includes patented technology in its body, or machinery and the vessel temporarily or accidentally enters the waters of a country, or when a patented item that is used in the construction or operation of an aircraft or land vehicle is temporarily or accidentally in the jurisdiction of a country, the use of that patented technology or item cannot infringe a patent in that country.

If any technology is considered to be in space temporarily (and it can be considered to be part of a vessel, aircraft or land vehicle), a patent covering the technology cannot be infringed, even if the jurisdiction of a country extends into space.

Whether or not any state’s patent law reaches the Moon, Mars, or beyond, it is clear that the practical implications of proving an infringement has occurred make the prospect of successfully suing for infringing their patent in space extremely unlikely. There are also questions of whether it would be morally acceptable to limit space exploration in this way.

So what are the more realistic ways that government and private organisations can protect their inventions made for use in space?

Until humans establish a sufficient presence to start off-Earth manufacturing, most things that go into space are going to need to be made on Earth. So long as these objects aren’t made in international waters, this means that companies can use patents to prevent their competitors making their protected inventions in countries where they have protection.

In addition to the acts discussed above, making an article, stocking it, selling it, or offering to sell it can also infringe a patent. In the UK (and most other countries), patents can be obtained for methods of manufacturing articles. This could provide further protection for inventions bound for space, before they have left the Earth.

Importing patented items can also be an infringement of the patent. Where something is made in a country not covered by patent protection, but is imported into the country for launching into space, this could infringe. However, the provisions allowed by the Paris Convention may apply when a patented item is only temporarily in the country (for launch for example), but the patent will still be enforceable if the item is not considered to be there temporarily.

Whilst it is far from clear whether any patent law can extend into space, there are still plenty of opportunities to protect inventions related to the space industry. If you would like to discuss options for protecting your innovation, please get in touch with your usual Barker Brettell attorney.