The Space Maze. Navigating International Law and Protecting Patents in Low-Earth Orbit and Beyond

• Date: 01 March 2024
• Author: Austin R. Bauersmith

The Space Maze Navigating International Law and Protecting Patents in Low-Earth Orbit and Beyond N ASA describes “low-Earth orbit” (LEO) as “the area in Earth orbit near enough to Earth for convenient transportation, communication, observation and resupply.” 1 Anything orbiting Earth with an altitude of 1,200 miles or less is considered to be in LEO. NASA is partnering with several private companies for the purpose of establishing a “robust LEO economy.” 2 Projects that sound like they were pulled from a sci-fi novel are now at the forefront for world governments and private actors alike. As exploratory and commercial plans will necessitate the development of new technologies, it is important to consider issues and current law pertaining to intellectual property protection in space. Published in Landslide, Volume 16, Number 3, 2024. © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. AUSTIN R. BAUERSMITH Published in Landslide, Volume 16, Number 3, 2024. © 2024 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 51 Commercializing Space As NASA transitions from the International Space Station, state partnerships with private entities will be important for maintaining U.S. presence in LEO. At the same time, a growing number of private companies are demonstrating that they have the technology to launch their own missions. SpaceX, for instance, is a private company that operates in partnership with NASA. The company often utilizes NASA’s Kennedy Space Center in Florida for launches and in-flight testing, and it depends heavily on NASA’s infrastructure and knowledge. The two organizations have entered into agreements related to several projects, including two missions to the Moon under NASA’s Artemis program by the end of the decade. 3 NASA’s Artemis program is specifically focused on exploring the Moon and other celestial bodies, including Mars. On June 15, 2023, NASA announced the second Collaboration for Commercial Space Capabilities-2 (CCSC-2), a partnership with seven U.S. companies designed to promote the “development of capabilities that can be crucial to development of a robust low Earth orbit economy.” 4 CCSC-2 and other LEO projects involving NASA and commercial groups are subject to NASA’s commercial use policy. 5 On the topic of intellectual property, NASA notes that rights in inventions and data depend on the terms of any applicable agreements and contracts. NASA also says it “takes steps to ensure that its contractors and partners retain the maximum rights permitted by law, unless NASA has identified a specific need for it to obtain rights in intellectual property for its own purposes as part of an agreement.” 6 NASA’s mission to “seek and encourage the fullest commercial use of space” is best served when its “contractors and partners are able to leverage investment.” 7 As is the case with the international agreements discussed below, NASA’s policy recites more of a goal than a clear structure. More than anything, the policy highlights the need for international consensus as it pertains to intellectual property acquisition and enforcement. This is especially important given the recent interest and emphasis on promoting commercial activity in LEO and beyond. Without international cooperation, U.S. and foreign stakeholders will be truly left to navigate unknown territory. International Law in Space In 1967, the General Assembly of the United Nations enacted 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). 8 The treaty reaffirms “the importance of international cooperation in the field of activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, and the importance of developing the rule of law” to deal with space exploration. 9 The reference to “other celestial bodies” seems to anticipate exploratory missions to Mars and other celestial bodies beyond the Moon. 10 Article I declares that outer space “shall be free for exploration and use by all States without discrimination of any kind, . . . and there shall be free access to all areas of celestial bodies.” 11 Further, Article I states that...