TABLE OF CONTENTS
INTRODUCTION 293 II. OVERVIEW OF INTERNATIONAL SPACE LAW 295 A. The Outer Space Treaty, the Registration Convention, 296 and Their Implications for Patents in Space B. The Flags of Convenience Problem in Outer Space 298 III. NATIONAL SPACE LAWS AND REGULATORY COMPETITION 299 A. National Space Laws Balancing the Considerations of 300 States and Private Entities B. Regulatory Competition and the Degradation of Patent 302 Protection IV. HARMONIZATION OF PATENT PROTECTION IN OUTER 304 SPACE A. Global Patent Jurisdiction for Patents Related to Space 304 Activities B. Challenges of the Global Patent Jurisdiction 307 V. CONCLUSION 308 I. INTRODUCTION
"It looks like we've got us a dragon by the tail," an astronaut announced on the International Space Station ("ISS") at 9:56 AM Eastern Time on May 25, 2012. (1) On that day, with its Dragon vessel, SpaceX became the first commercial company to dock a spacecraft at the ISS. (2) Human activity in the final frontier is undergoing fundamental change as we enter an age of privatized and commercial space endeavors. (3) In stark contrast to a time when space activities were conducted exclusively by government agencies, many private entities have entered the arena over the past decade. (4) In fact, multiple private entities have already succeeded in launching low-orbit satellites and cargo into space, while a few inch closer toward civilian spaceflight and tourism. (5) In turn, this has allowed government agencies to focus their time and resources on "deeper space exploration," relying on private entities to reduce costs and execute less ambitious tasks. (6) A key concern that has arisen from this rapidly changing environment is the protection of patents in space. This Note aims to assess, identify problems with, and present a solution to, the status of patent protection in the context of space activity by private entities.
Part II of this Note introduces the current international treaties that provide the framework for governing space activities. Current international space law and maritime law share similarities, including the "flags of convenience" problem, in which private entities selectively register themselves with the state with the most favorable laws. (7) In space, this problem is exacerbated and perpetuated by the fact that a space object does not enter a destination port in the way that a ship does in maritime law.
Part III of this Note surveys the regulatory competition among states that seek to attract private entities conducting space activities and analyzes how national space legislation tracks the interests of such private entities. States may compete to provide the most favorable terms to private entities in a race to the bottom, aggravating the flags of convenience problem and creating externalities such as the degradation of patent protection across multiple jurisdictions.
Part IV of this Note presents a solution to the degradation of patent protection: the creation of a global patent jurisdiction to harmonize the various regulatory approaches to patents related to activities in space. This solution must overcome many challenges, but the international community has previously demonstrated support for multilateral treaties regulating the protection of intellectual property in space.
OVERVIEW OF INTERNATIONAL SPACE LAW
International space law currently consists of a collection of international treaties and principles that govern various aspects of outer space investigation, exploration, and other activities. (8) Five international treaties, collectively referred to as the Five United Nations Treaties on Outer Space ("the UN Treaties"), exist to ensure that "the activities carried out in outer space and whatever benefits might be accrued from outer space [are] devoted to enhancing the well-being of all countries and humankind, with an emphasis on promoting international cooperation." (9) The UN Treaties entered into force between 1967 and 1984, when space exploration was led by government agencies. (10) The treaties were meant to address the behavior of major space powers against the backdrop of the Cold War and the Space Race and to focus on issues such as allocating responsibility for damages and rescue operations. (11) As a result, the UN Treaties do not speak directly to the preservation of patents in space. (12) Nonetheless, as explored below, two of the UN Treaties are still particularly relevant as we consider the privatization of outer space activities: the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space Treaty") and the Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"). (13)
The Outer Space Treaty, the Registration Convention, and Their Implications for Patents in Space
The Outer Space Treaty was the first international space treaty, and 107 states have consented to be bound by it since it was entered into force on October 10, 1967. (14) The Outer Space Treaty lays down two fundamental principles of international space law. (15) First, the outer Space Treaty extends the general application of international law into space. (16) Second, the Outer Space Treaty sets out the concept of "non-appropriation," which reserves outer space and celestial bodies as free for exploration and use by all states and prohibits any nation from claiming territory or resources. (17) Furthermore, the Outer Space Treaty declares that a state is responsible for damage arising from acts that are directly attributable to that state, as well as for damage indirectly attributable through the acts of those in an official capacity or private entities under the supervision of that state. (18) In turn, a state's responsibility for supervision arises when it registers a space object with the Secretary-General of the United Nations: the Outer Space Treaty places a space object under the jurisdiction, control, and responsibility of the state that registers it. (19) While the UN Treaties do not comprehensively define what constitutes a space object, the Registration Convention explains that "the term 'space object' includes component parts of a space object as well as its launch vehicle and parts thereof." (20) The ambiguity presented by this term is outside the scope of this Note, which will assume that a space object encompasses the parts and launch vehicle of objects launched from Earth into outer space.
The Registration Convention entered into force on September 15, 1976, giving effect to the registration requirement of the outer Space Treaty. (21) In relevant part, the Registration Convention requires that the "launching state" of a space object register that object. (22) A launching state is defined as a "[s]tate which launches or procures the launching of a space object" or a "[s]tate from whose territory or facility a space object is launched." (23) Where multiple states fall into the definition of a launching state, the Registration convention directs those states to jointly determine one state to register the space object. (24) Putting the pieces together in the context of private ventures, then, a space object launched by private means must also be registered with one state, which exercises jurisdiction and control over that space object. (25)
In effect, the Outer Space Treaty and the Registration convention work together to extend the jurisdictional reach of a state to space objects registered by that state, even if those objects are located in outer space. The laws of a state apply within its jurisdiction. Therefore, the implication of the Outer Space Treaty and the Registration Convention is that a state's laws, including intellectual property laws, apply to a space object registered by that state as if the object were on Earth and within the state's territorial bounds.
The precise application of a state's laws in outer space depends on the surrounding legal context. For example, the United States Patent Act provides certain protections within the United States, its territories, and possessions. (26) Courts generally interpret the Patent Act to be limited to territorial boundaries in the absence of explicit extraterritorial expansion by Congress. (27) In any case, it became clear that the Patent Act could apply in outer space when Congress enacted the "Inventions in Outer Space" provision of the Patent Act in 1989. (28) In relevant part, this provision states:
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 [patent laws], except with respect to any space object or component thereof that is... carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space. (29) In summary, this provision explicitly extended the patent laws of the United States to any space object registered by the United States (and therefore under its jurisdiction), and excluded space objects registered by other states from its jurisdiction. This is in line with the Outer Space Treaty and the Registration Convention, as this Note explains above.
The Flags of Convenience Problem in Outer Space
A foreign registration exception to the application of patent laws to space objects raises the possibility of private entities selectively registering with states that provide the most favorable conditions with regard to patent liabilities. (30) Because patent laws and protections are territorial, one must acquire a patent in every state jurisdiction in which one seeks protection. (31) For the same reason, a potential patent infringer in one jurisdiction can avoid liability in outer space simply by registering its infringing space object with a state where the patent holder...