Patents in Outer Space: An Approach to the Legal Framework of Future Inventions

Patents in Outer Space: An Approach to the Legal Framework of Future Inventions

Juan Felipe Jiménez

Space is a challenge for patent law. From the first Apollo moon mission, to the astronauts on board today’s International Space Station, man has used technology in outer space. But what happens if the technology used on these missions is patented on Earth? Because patent rights are territorial, use of patented technology in outer space is presumptively non-infringing, and accordingly requires no license. As increasingly frequently private commercial actors are exploring space, this lack of patent enforcement has the capacity to distort incentives to invent technology that is primarily designed for use outside the Earth’s boundaries. While some countries have tried to solve this problem by applying their domestic patent law extra-territorially, an international solution is required.

This Article proposes a solution to the problem of patent enforcement in Outer Space. The Article suggests the creation of a “Space Patent” regime to be administered by the United Nations Committee on the Peaceful Uses of Outer Space. The Committee should create a “Patents Subcommittee” that will work alongside the preexisting Scientific and Technical Subcommittee and the Legal Subcommittee. This new subcommittee will have the jurisdiction to grant patents on inventions for use in Outer Space. The Subcommittee will not only receive and examine patent applications, but also will serve as an arbitration center for any disputes which arise. To make the scheme a reality, the Outer Space Treaty should be modified. This will stimulate incentives to invent space-related technology in the future.

98 J. Pat. & Trademark Off. Soc’y 447 (2016)

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