By Anne Colrick (Rutgers Law Student)

A patent gives an inventor the right to prevent others from “making, using, offering for sale, or selling” his invention.  The U.S. patent system is territorial in nature and is granted by national/regional patent offices.  Therefore, a patent is protected only within the country that grants the patent.  This is problematic when it comes to inventions made in outer space since outer space is beyond the boundaries of the U.S. territorial system. Furthermore, the concept of intellectual property, which includes patents, seems to conflict with the principles laid out in the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty of 1967).  Article I and II of the Outer Space Treaty state that exploration of space is for the benefit of “all mankind” and will not be subject to “national appropriation.”  Therefore, it would seem outer space is excluded from the regulations of U.S. patent law. However, while no specific international treaty explicitly mentions regulating intellectual property in space, there are certain space treaties that create a system which will extend U.S. patent law to a U.S. registered spacecraft.  This extension was created through Article VIII of the Outer Space Treaty, which declares that a state, which registers an object that is launched into outer space, will have jurisdiction and control over such object.  The U.S. codified this extension through the enactment of the Inventions in Outer Space provision (35 U.S. Code § 105), which states that anything made, used, or sold on a space object under the “jurisdiction or control” of the U.S., will be considered to have been made, used, or sold within the U.S.  Therefore, the U.S. patent law is applicable on any spacecraft launched into space by the U.S. and within the U.S. However, there is an exception to this provision.  This exception states that a “space object or component thereof that is specifically identified and otherwise provided for by an international agreement to which the U.S. is a part” or a space object that is “carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space” invalidates the jurisdictional extension.  The Convention on Registration of Objects Launched into Outer Space (Registration Convention) states that the “launching site” has the obligation to register space objects. The “launching site” is either the state that launches or that procures the launching of a space object or the state from whose territory or facility a space object is launched.  Therefore, the U.S. patent law loses jurisdiction when a spacecraft is registered in a foreign country. Thus, while an infringement to an invention created on a registered U.S. spacecraft will be under the jurisdiction of U.S. patent law, such laws can be bypassed simply by registering the space object in another country.  Consequently, this loophole could potentially allow people to infringe upon and exploit U.S. technology without being held liable for such acts. This loophole could severely affect the private outer space industry since patents are crucial to promote technological innovations. If a company can avoid such patent laws, the incentive to promote innovation will be gone.  Companies will be more interested in protecting their inventions than sharing their knowledge with the public through patent filings.  As a result, new technological discoveries will be stunted and advancements in space exploration, such as commercialized space travel, will be hindered.  Thus, not only will the advancement in technology be affected, but the betterment of mankind as a whole will be as well.  Therefore, in order to prevent such occurrences from happening, better regulations must be made to help enforce liability and strengthen the U.S. patent legal system as a whole.