Certain Aspects of Intellectual Property Rights

In Outer Space

Isabelle Bouvet

Faculty of Law
Air and Space Law Inslitutc
McGill University. Montreal

November 1999

A thcsis submittcd IO the Faculty o f Gnduntc Studies and Rescarch

in panial fulfillment of the requirements of the dcgree of Macter of Laws (LL.M.).

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 ABSTRACT
a

This study analyses Intcllectual Propeny Rights rclatcd to spacc activitics and

Spacc Law. The potcntial contradictions betwccn thcsc iwo laws arc ofspecific intcrest.

Besidcs the differcnt approaches on which thcir legislation has bcen cstablishcd. thc

incrcasin rolc of pnvate companics as spacc actors calls for the adoption of a strong

legal frmcwork for Intcllcctual Propeny.

The issuc of Intcllcctual Propcny Rights in outcr spacc will bc cxamincd within

the firsi Pan, with a focus on Patcnt Law. The second Pan explores the spccific ~ l c s

contained in the International Spacc Station Intcrgovcmmcntal Agrccmcnt, on

Intcllcctual Propcny and exchangc of data and goods. Although therc is somc lcgal

mechanism. no protection capable Io mcet the spacc industry's currcnt and future nccds.
 Cette thse analyse le Droit de la proprit lntellectuellc au regard des activitks

spatiales et du droit de l'Espace. La confrontation des principes de base qui gouvernent

respectivement chacun de ces droits revt en effet un intrt particulier. Outre une

philosophie diffrente dans l'approche des questions juridiques, la participation croissante

du secteur priv dans les activits spatiales ncessite d e crer un cadre juridique solide en

matirc de Proprit Intellectuelle.

La prcmire partie est consacre ii l'analyse du droit de la Proprit Intellectuelle,

ct plus spciliqucmeni le droit des brevets dans le cadrc des activits spatiales. La

seconde pone sur le cadrc juridique de la station spatiale intemationalc, et notamment. la

proprit intellectuelle et I'changc des biens et des donnes. Nous verrons que malgr

I'cxistcncc de mi.canismcs juridiques. il n'existe pas P l'heure actuelle d e protection qui

soit suffisamment efficace pour rpondre aus besoins croissants de l'industrie spatiale.
 ACKNOWLEDGEMENTS

1 would likc Io th& thc professors a s wcll as cvcry mcmber of the Air and Space

Law Institutc staff for this wondcrful year, with spccial thanks Io Dr. Michacl Milde

whosc enthusiasm has bccn rcally motivating.

1 wish to cxprcss my ntitudc IO thc Europcan Spacc Agency jurists for thcir

dcvoting and thcir prccious advices on Intcllcctual Propcny maticrs.

Finally. 1 must addrcss a gntcful thank to my supervisor. Profcssor Ram Jakhu.

for his availability, al1 his encouragements and tmly hclpful commcnts of this thesis.
 TABLE O F CONTENTS
a
Introduction p. l

PART O h T
INTELLECTUAL PROPERTY AND SPACE A C T M T I E S p.7

CHAPTER 1: Rclevnnce of the lntellcctual Property in Space Activitics

Section 1. Commercial and Scientific Spacc Rcsearch and Spacc Manufacturing p.8
Scction 2. Question ofTnnsfcr ofTcchnology in the Private Sector and National Secrccy p.l I

CHAPTER 2: lntcllectual Propcrty and Spacc Law; DiKcrcnt Appronches p.13

Section 1. Legal Principlcs of IPR in Outer Space p.14

1. Inicllcctual Property Rights and Patent h w s
1.1 Basic Mcchanisrns
1.2 Types of Jurisdiction p.15
2. Place of lntellcctual Roperty in lntcrnational Spacc Law p.16
2.1 lntellcctual Propcrty and The Bencfit Clausc. aniclc 1 of thc OST p.19
2.2 lntellcctual Property and Non-Appropriation Principle p.20
2.3 Jurisdiction and Control p.22

Scction 2. Illustration of rhe Problem p. 24

1. Consequences of the Potcntial Conilict
2. Cases b.27
2.1 Hughes Aircnft Co. v. Unitcd Statcs p. 29
2.2 TRW v. ICO Communications p. 32

Scction 3. Future Trcnds p. 35

CHAPTER 3. For A Lcgnl Framcwork on Intcllectunl Propcrty Rights p. 38

Section 1. The National Lcvel

I . European Countrics p.39
2. Non-Europcan Counmcs p.4 1

Section 2. Thc Regional Level p. 46

Scction 3. Cornrnon Rcgulation at an Inlcrnational Lcvcl? p. 49

1. Through global initiatives: the 21" Ccntury as " E n of Intcllecnral Crcation" p. 50
2. Shall WCHave a Spccific Intcrnational Intcllcctual
P r o p e q Law for Space Activities? p 52
PART II
INTELLECTUAL PROPERTY AND THE INTERNATIONAL SPACE STATION p. 55

CHAPTER 1. T h e Legnl Frnmework p. 58

Section 1. A Uniquc Fnmcwork Undcr Intemational Law p.59

1. Main Legal Provisions of the IGA
2. IGA and Intellcctual Propeny Righu p.62
2.1 Mechmism. aniclc 21 on Intellectwl Propcrly p.63
2.1.1 Genenl Proccdurc
2.1.2 Hypothescs of Application p.66
2.2 Pnctical consequcnces cnhmced by aniclc 21 p.67
3. IGA and Dam Prolcction. aniclc 19 p.69
3.1 Gcnenl Mcchnism
3.2 Pnctical Conscquences p.71

Section 2. Mcmonndum Of Understanding and lmplcmcnting Arrangcmcnts p.73

1. Memonndum Of Understanding
1. Implerncnting Arrangements p.74

CHAPTER 2. Implcmentntion of lntellcctunl Propcrty Provisions in Domestic Lnw p. 76

Section 1. The Individual Panncr States

1. Canada p.77
2. Japan p.78
3. Russia p.79
4. United States p.73

Section 2. The specificity of the European Panner States p.81

1. Situations of thc European Membcr States p.82
2. The "European Panner." an Innovattvc Notion in International l a w p.84
2.1 IGA and the Europcan Panner Legal Fiction
2.2 Ftction Justification p.85
2.3 Consequenccs of the Qualification p.86

Conclusion p.88
INTRODUCTION

The pcnod pnor to the fifieenth Century is of specific interest in the history and

evolution o f patent. At that time. privileges were accorded by the sovereign, affording a

special right to an individual; the concept of utility and sometimes favontism playing an

important role. The "Parie Veneziana," ihe f i n t form o f privilege. was adoptrd by the

Republic o f Venice in 1474.' This anecdote is relevant for a study on intellcetual propeny

rights in outer space: Although non-govemmenlal aclors are increasing, the space

business remains government related as any space activity carried in outer space requires

a government level approval. One o f the most important manifestation of space law is the

international responsibility borne by States Parties to the Outer Space ~ r e a t for

~ l national

activitics in outer space. As a consequence, and in the concern of avoiding the existence

o f any pnvilegc or abuse in the grant of rights. it is irnponant Io guaraniee a fair and

proteciive legal framework.

Scc Inrmrfucrion ro Inrdlecruol Prupcrry, Thcon. and Prucrice. Ed. by thc World lntcllcctual Propcny
OrgnnuJtion (Kluwcr L w Intcmniionnl. 1997). nt 17.
:n i c pillars of thc intcrnntionnl spacc tau. arc thc fivc following ocatics: Thc Trcnty on Principlcs
Govcrning thc Aciivitics of Siaics in thc Exploration and Usc of Outcr Spacc. including thc Mwn and other
Cclcstinl Bodics. hcrmficr ihc Ouicr Spacc Trcary. or OST (1967). ihc Agrccmcni on the rcscuc of
asnonnu. thc rcnim or nsnonauts and hc rcnirn of obiccis launchcd in10 outcr siincc (1968). thc
Conicniion on Ihc intcrnatioml Itabiliiy for &mage cawcd by spacc objcc (1972). & Convention on
Rcsismtion of Obiccis Lnunchcd into Ouicr Spacc (1974) and the Acrccmcni Covcrninc thc nciiviitcs of
swks on ihc rnooi and othcr celcstinl hadici. SC; in Annuls of A> and S&CC Lnn: ICASL McGill
University. (Pdonc Ed.. vol. XVIII, Pan II. 1993).

I
 First, in order to have a clear understanding of the questions dealing with

intellectual propeny, it is uscful to rccall some definitions. Intcllectual propcny

comprises of two main branches: "Industrial property" embnces the protection of

inventions by means of patents, protection of certain commercial intercsts by means

of tndemark law and the law on protection of industrial dcsigns. In addition,

industrial property addresscs the repression of unfair competition. "CopMiglit" granis

authors and other creators of works of the mind (literature, music, art), certain rights

IO authorizc or prohibit, for a cenain limited t h e , certain uses made of their works.'

A patcnt. relatcd to the Tint branch, is a document issued by a govemment o f i c c

which describes the invention and crcates a legal situation in which the patented

invention can nonnally only be exploitcd (made. used, sold, imported) by, or with. the

authorisation of the patentee. The protection of inventions is limitcd in timc (gcnenlly

twenty ycars from the filins date of the application for the g m t of a An

invention is a novcl idca that pcnnits in pnctice the solution of a specific problem in

the ficld oftcchnology?

' Scc s u p n noie 1. at 3.

' II is csiimntcd that the numbcr of parenis grnnicd world-widc in 1995 wns about 710.000. Funhermorc. il
is csiimatcd thai nt the end of 1995 about 3.7 million paicnrr wcrc in force in the world. onlinc: h c World
Intcllcctual Propeny Organiwlion tlomcpagc<hnp://~~~~.wipo.org~ens/lll~in.hm~

' Under most Icgislaiions concerning inventions. the idca. in ordcr Io bc proiecicd by Inw ("patcnoblc").
musi bc ncw in thc sensc ihni ii has no1 alrcady bccn publishcd or publicly used; it mus1 be non-obvious
("involve an invcntivc stcp') in the scnsc that II would no1 h v c occuncd to nny spccinlist in ihc panicular
indusuial field, h d such n spccirlisi becn s k e d IO End n solution Io thc panicular problem; and it musi bc
capoblc of indusrrial applicurion in thc scnsc that it c m be indusmnlly n w n u f a c ~ r c dor uscd. For funher
dcvclopmcnis. ihid.
 The intcllectual propcrty law is usually lirnited to the boundaries of the country
O whose government g r a m the rights. In order IO rcceive protection in several countries.

the owner of the invention will have to seek protection in these places. To guarantee the

possibiliiies of obtaining protection in foreign States for their own citizens, in 1883.

elcven S ~ a t e established
s the lnternational Union for the Proteclion of Industrial Propeny,

by signing the Paris Convention for the Protection of Industrial propeny? The World

International Property Organization, hereafter WIPO. was established on July 14, 1967 to

promote the protection of intcllectual property rights throughout the world.' Allhough the

Pans Convention required the filing of a patent in each foreign country, the concept of

"international application" was introduced by the Patent Cooperation Treaty of Junc 19.

1970, providing a great simplification in the fini steps of the procedure. However.

national or regional patent agency rctains the final responsibility for the gram of the

patent.

The relevance of intcllcctual propeny in the space scctor was <xamined with more

accuracy for about tcn years. This tendency corresponds to the current evolution of this

sector. "New entrants and interests are taking shape and alrcady today therc is morc

private than public investmcnt in space systems. The trend will continue strongly into the

'Ibid
"ln many wnys. the WIPO is one of the mort effective and well managcd agencics of ihe United Nations.
In addition to nising ihc lcvcl ofprotcciionfor intcllccnial propcny gcnenlly. ihc WIPO h s played a vin1
role in hclping counmcs set up cnctivc intcllecnial pmpeny regimes!' G. J. Mossinghoif and V. S. Rua.
O World Patent System Cira 20SX A.D.. in Journol of rhe Pafrnr and Trademark O
1998. vol. 80. No 8). ai 528.
& Saciey. (August
 ncxt ccntury, when it will be forcsecable IO have more purpose for pnvate enterprise than
a for Statc activity in outer spdcc."s

This phenomenon already startcd with the commcrcialization of the International

Spacc Station.' hercafier. the ISS. Duc to the extrcmely high costs rcquircd IO realizc the

biggcst international tcchnology projcct, a close coopcration behvccn States was

necessary, such a s thc introduction of an aerospace industry. The US Commcrcial Space

Act of 19981 cstablishcs the cconomic devcloprncnt of Earth orbital spacc as a pnonty

goal." Spacc Agcncics. like NASA are prepxing by developing a Commcrcial

Dcvelopmcnt Plan for the ISS. Intellecrual propcny is thcrcfore of grcat rclevancc. It

should bc noticed hcrc that a "derogatory reirne" will apply IO the spacc station.

Although the spacc trcatics will find application. a leal framework has bccn crcatcd IO

addrcss spccific questions to the Panncrs. The intcllectual propcny is a pan of the

Intcmational Space Station lntcrgovcmmcntal ~ g r c c m c n t hcreaficr

,~~ IGA.

Apart from the IGA, the problcm o f patent protection could bc dividcd into two

pans. On thc one hand. alihough thc spacc trcatics do not contain any cxplicit regulation

on intcllectual propcrty. iherc is no total vacuum as such in the international lcgal

"hl. Fc-ni. "Spacc prncttccr on tlic movc." in Proceedings of rlw 3d ECSL Colloqviun~on
Iiirr.r~iurronulOrguni:uiionsonrlSpuci~Law, I'crugia. 6-7 ,May 1999. (ESA SP-442. Junc 1999)
" Scc infra Pan II. introduction.
'"CommcrcialSpncc Act of 1998. Octobcr 21. 1998. (Public Law 1M-303).
" hl. Uhmn. "Commcrcial Dcvclopmcnt of ihc Intcmntioiwl Spacc Swiion". onlinc: Intemational Spacc
Univcrsiiy Homepagc <hrrp://~~.isunct.edu/SpposiunilSymp0si~m99/Ora1%2OAbstm~~n.hml~

a '' Signcd on Janunry 29. 1998 in Washington D.C..bctwccn the Eumpenn Pntmer (elevcn Mcmbcrs).
Russtn. Japan. Unned Swtcs and Cana&.
 fnmewok. As will bc scen in the f e r dcvelopments." outer space cannot bc
0 appropriatcd. Conscquently, it is prohibitcd to cxercise any sovcreignty in this arca.

Ncveriheless. Lhrough thc jurisdiction and convol mechanism. an arfificial link will be

cstablishcd betwecn a space objecti4 and a Statc. For example, if a company plans IO

launch satellites containing high tcchnology that has been protected by a patent. or cven

conraining no specific paren!, the company will have to rcgister al a national and

international lcvel its space objcct. Under Anicle VI11 of the Outcr Space ~rcaty." the

Rcistration Statc will cxcrcisc its jurisdiction and control over that space object. In case

of litigation. the law of that Statc will apply in thc absence of specific provision on

intcllcctual propeny.t6 The question of the validity of a patent for an invention crcatcd in

outcr space does not create difficulty: for most of the countrics. as parent regulation is

govcrncd by the first-IO-file system. As a conscquencc, no matter whcre the invention

rook place. thc protection bclongs to the fint who files the invention. In a fini-Io-invcnt

systcm. thc datc of invention is of imponant relcvancc and questions of evidcncc will

anse. On the other hand, questions rcmain. such as owncrship and use of rights in outcr

space. or infringcmcnt of an cxistin parent o f a third pany.

" Sec infra 2.2.In:cllec~al Propcny and Non-appropriaiion.

" Alihough ihc notion of space objcct was subjeci o f a grcat conmvcrsy. espccially Io know iis to whcihcr
n space station is 3 SPICC objcct (sec infra Pan II. Chaptcr 1. Scciion 1. 1.). ii could bc defincd as follows:
"gcncrtc l e m uscd IO cover spacccnft. saicllies. and in faci anyihing that h u m n bcings launch or attcmpt
io launch inio spacc. including ihcir componcnts and launch vehicles. as wcll as pans ihcrcof." B. Cheng. in
Srudi~.sin 1ttrr.rnarionol Space Loii~(ClarcndonPress. Oxford. 1997).nt 463.

" Aniclc Vlll OST: "A Swic Pany Io the Treaty on whosc rcgistry an objcct is launchcd inio ouicr rpace is
carricd shall rcwtn jurisdiction and connol ovcr such objcct. and ovcr m y penonncl ihcrcof. whilc in outcr
spacc or on a cclestial body." Sec supn note 2.

' WC will sec in ihc course of thc s ~ d ythat the United Swtes have adoptcd a spccial law in 1990.
cxicnding ihc applicability of ihcir Domcstic Iaw IO outer spacc. 35USC 105. addcd by Public Law 101-
580. Scciion l(a). 15 November 1990. 104 Swt. 2863. with rcmaciivc cffcct.
 In the repon of the third United Nations Conference on the Exploration and
a Peaccful Uses of Outer ~ ~ a c e ,the
" title "Harnessing the potential of space at the start of

the new millenium" expresses the issue of intellectual propeny in outer space. "The

fcasibility of harmonizing international intellectual pmperiy standards and legislation

rclating to intellectual propeny rights in outer space should be funher cxplored with a

view to enhancing international coordination and coopention ai the level ofboth the State

and the private s e ~ t o r . "This

~ ~ thesis illustntes that even if no lcgal vacuum exists, the

current system is not satisfying enough and does not give safety and trust to the industry.

In a first part, this study highlights the current f m c w o r k and future issues of

intellectual propeny rights in outer spacc with a focus on patent. The second pan explores

the spccific-project agreement, the intergovernmental agreement, signed the 29Ih January

1998. and governing the relations bctween the Partners of the International Space Station.

" Vicnna from ihc 19' to the 30'of July 1999. onlinc: The Uniicd Nations Commince on Pcaccful Uses of
Ouicr Spacc. UPI'ISPACE III Repon ni <ht~l!i~vw.un.or.a~,OOSA Iunisp-3/doc~docr.hun,

a " Chnptcr II. Bnckground and rccomrncndmions of the Confcrcncc G. Hmcssing thc poientinl of spncc ai
ihc stnn of ihc ncw millenium 6. Promotion of intemaiional coopcniion (c) Soie und pcrspcciivcs of
inicrnniional cwpcmtion (ii) 5405407. ai 71. Ibid.

6
 PART 1
0 INTELLECTUAL PROPERTY AND SPACE ACTIVlTIES

The study of Intcllcctual Propcrty Rights in outcr spacc is rclcvant in regard of

scvcral aspecis. Howcver. Intcllcctual Propcrty Rights on one side. and Spacc Law on the

othcr side. both rest on differcnt approaches. thus lcading to potcntial conflicts.

CHAPTER 1

RELEVANCE OF THE INTELLECTUAL PROPERTY IN SPACE ACTIVlTIES

The dcvclopment of spacc business in the coming years will face trcmcndous

growth. In 1998. worldwide space revenues rose IO S97.593 Billion. Thc forccast for 1999

is 5105.012 Billion and S137.822 Billion in 2002. Thcsc statistics"' suggcst an cstimatcd

5577.1 Billion in worldwide Spacc rcvcnuc, with a forccast growth of9.01%. Why docs

intellectual property rights have a great role to play?

Any activity. whcn iaking place in outcr spacc. usually rcquircs large amount of

moncy as thc cos1 of a launch rcmains vcry high. and cxcept the US Spacc shuttle, thc

launch vchiclcs arc cxpcndablc. A complctely rcusablc launch vehiclc will rcvolutionize

space activities as it will considcnbly dccreasc the cos1 of achicving acccss 10 spacc

NASA and Bocing have rcccntly signed a four-ycar agrccmcnt to build a fly and singlc

' Swtc of ihc Spacc Industry, Ouilook 1999. Summav of srarisrics. (preparcd by Spacc Publications in
collabomt~onwith Inlemiional Spacc Business Council. 1999) nt 5. 7.

7
X-37 reusable vehicle in orbit. "II would cul the cost of accessing space from S1O.OOO Io

S1.000 pcr

Any industry needs to be protected through the crcation of patents. and especially

in the high technology area. as the vast m o u n t of money involved requires achieving a

tmsting relationship with the investors. Ir is nccessary to guarantec safe invcstmcnts. not

only for current spacc activities but also for future ones.

Manufacturing in spacc, eiiher for scientific or commercial purposes, underlines

thc significancc o f lntellectual Propeny Rights. ln addition, issues such as transfcr of

technology and national secrecy are also closely linked to this notion.

Section 1. Commercial and Scientific Space Research a n d Manufacturing:

Scientific research in space activitics will affect several ficlds. If w considcr the

mcdical field, for example. ncw expenments will bc realizcd in microgravity, on thc

human body itsclf. but also on its psychological cffects on the astronauts. Sevenl

panmeters affect the human body in space. such as micrognvity. solar radiation, exireme

tempentures. and motion sickness. The bone intensity is modificd. For example, dunng

short-lem flights. both cosmonauis on the 18-day Soyuz 9 flight lost 8-10% of thcir

cnlcarcous density." Muscles. bones and the cardiovascular system arc also deeply

affccted.

"S-37 Explores Reenny Rirks." Avialion Weck nnd Spacc Tcchnology (McGnw-Hill Cornpanics Pub..
Augurt 9. 1999).a 72.

:' C. Cam. S. Churchill 6:R. Edgenon. "Responsc o f Boner und Muzclc S y s i c m Io SpaccMghi" in A.
Hourion and M. Rycrofl Ed.. Kcys ro space. an inrcrdisciplinaty approach ro spacc srutlics (McGnw-Hill
1998). 18-23.
 Although these phenomena have been studied in the coune of space lab
0 cxperiences. most of the former space mission look place in Low E m h Orbit, where

astronauts did not cxperience the effect of deep space radiation. This question is an

imponant stake for the future space missions in order to makc possible human space

fiights in deep spacc. Funhermore, with the longer missions that will take place in the

International Space Station, we will have to take into account the effects of longer periods

of time undcr microgravity and the consequences of isolation and confinement.

Commercial space research in a micmgravity environment will also givc the

opponunity to test improvcd and new materials (cg. biomedical dmg development). The

Research and Development technology will be improvcd thanks to research on propulsion

systcms. thermal control. optics or high-temperature matcrinls. Furthermorc.

tclecommunications. spacecraft manufacturing. launch vchicles, ground cquipment, and

global positioning system services arc pari of the current and planncd commercial

applications that undcrline the imponancc of intcllecmal property in outer space. On the

cornmercial side of space activities. these prerequisites secm natunlly essential, as we are

in a Iiighly competitivc environment.

In the tclccommunications sector. for example. even if the satelli~ei n f m t ~ c t u r e

has to be cornpletcd by a fiber nctwork, a large m g e of opportunities will be offcred IO

the spacc industry. The mobile satellite services and fixed satellite services represent an

imponant part of this market. With the fixed satellite. multiple services will be available

for the customer. such as telephony transmission. cable & video transmission. broadband

services, private business nctwork. Internet access. telemedecine and tele-education.

Thanks IO the development of high-resolution data, remote sensing will also be used in
 many applications, such as agriculture, civil planning. and mining. The Geographical
0 Information Systems (GIS), combincd with different kinds o f data, arc also of grcat

intercst for the industry."

In order to materializc thesc projccts. vasi investments are nccessary. Sincc statcs

arc no longer the solc panner in the space sector. There is a growing tendcncy toward the

involvemeni o f private companies. As their invesments are essential, these companies

will look for strong protection of their interests. The importance of the retum on

invcstment may bc illustnted by the recent difficulties met by the company Iridium. h i s

Company has launched its constellation o f mobile satellites, offenng to the customcrs the

possibility to be reached in remotc areas thanks to powerful cellular nctworks." The cost

rclated to the manufacture and launch o f satellites was very high, and unfonunately the

rctum o n invcstmcnt too slow. As a rcsult. the commercialiwtion did not reach the levcl

that was cxpectcd by its managers. and Iridium is nonr undcr the US procedure of

Bankmptcy, attcmpting to have a recovcry package or IO be transfcrrcd. "Iridium's filing

for Cliaptcr I 1 bankmptcy buys the troublcd venture somc more lime, but analysts say the

company must movc swinly to survivc.""

Although in this case. the dinicultics have nothing to do with intcllectual propeny

aspccts. thc lesson of this failurc is that in ordcr to create a business in space, the rctum

on investmcnt has to bc takcn into account. "With the shin toward private entrcpreneurial

Sc gcncmlly supm noic 19

" "Onc o f thc kcy fcanircs ihat thc ncw scrviccs will offcr is thc option Io link a wtcllitc phonc with
tcnestrial wirclcss services. h c intcgntion o f ihc sntclliic componcnt will allow phones to opcmtc in
dcvcloping counmcs. ln lhc rnountains. on the occnns. in aircnft or anywhcrc mditional ccllular services
arc not availnblc." Scc s u p n note 19. nt 43.

O ''"Iridium's Futurc Up in thc Air." AviliIron Ii'eek andSpace Tcclinology. August23. 1999.
 space ventures foreseen for the next few dccades, industry will be looking for. and the
a law will cvolve toward, means to protect private creative endeavors in space."'5 In any

vcnturc. detailed provisions o n proprietary rights are stated. The conscquence of any

unfair practice relatcd to the protectcd rights must be considered. This protection requires

extcnding il in al1 the countries where the pmprietor considers his patent shall have an

effcct. The choice of the country will depend on its level of involvement in the space

arcna. For example, if the future commercialization of an invention made in the spacc

station is to takc place in a cenain country, its initiators had bettcr file a patent in that

country. Thcse questions lead us to examine thc problem of tcchnology transfcr and

national sccrecy. which are closely rclated 10 Intellecrual Propeny aspects.

Section 2. Question of Trnnsfer of Tecbnology in the Private Sector nad Nationnl

Secrecy:

The intcllectual propeny is a significant issue, and according to Mrs. Balsano and

M. Smith. "we deal witli lntellcctual Propeny as a tool for controlling the transfer of

tcchnology."~'

The existence of companies such as INTOSPACE provcs the significmcc of

intcllectual propcny protection. This German Company, defines its activitics as follows:

To promote. initiate. and support micrognvity space activitics such as rcscarch,

development and commercial production tasks to be camed out in space, as well as to

'' B. Luxcnberg and G.J.MossinghoK "lntcllccnial Propeny and Spacc Activiiics." in Jour1101of Spocr
LoivVol. 13. No 1 . (1985).ai 8.
'' Anna-Maria Balsano & Bradford SmiIh. 'lntcllccninl Propcny and Spacc Activitia: A Ncw Rolc For
COPUOS." in Ourlook on Spoce Lawover the 30years. G.h f c m d c r i c Ed. (Kluwcr Law Intcrnatioml.
1997).at 364.
 tender assistance and consultation with respect IO such space activitie~.~'These masures
a will ensure the confidentiality of the scientific data through a contractual protection as

the interests ofeach pany are quite specific and oRen polar opposites. INTOSPACE helps

the parties to reach a compromise.'8 In the space industry. the players are govemments.

institutions, and pnvatc companies. which arc usually working together but representing

different countries and consequcntly specific interests. It will be tricky to entmst a

satellite jus: manufactured to a Company that will be in charge of the launch. Suspicions

and conflicts could quickly a i s e . In order to prevent them. vade secret considentions are

cstablished in common law as well as civil law countrics, through the statemcnt o f

nondisclosurc agreements. Consequently since the United States have accordcd a specific

imponance on intellectual properiy considering it in the context of technology transfer,

they have adopted a spccific legislation: The oversight of the international contncts has

bccn iransfcrred from the Depanment of Commerce to the Depannient of State and

provides a spccific procedurc in case of a satellite hardware and systems sale to a non-US

contnctor. Through this obligation. the US govemment exerciscs its control over that

type of comnicrcial opcntion, assuring the protection of the national technology. On the

othcr hand. this policy might be an obstacle in the course of the satellite

commcrcialization if the lcvel of control cxercised by the governmcnt is too high.

:' A. Lcmius. "IhTOSPACE: Applicd Rcscnrch in Spncc - Expcncncc and Prospccis of Conmctual
Pncticc." in Procecdi!igs of rhc Il'orlrhop lnicllecruul Properv Rlghis and Spuce Aciivilirs. Europcan
Ccntrc for Spncc Law ESA Hcadquancr Paris. 5 8: 6 Deccmbcr. 1994. (ESA SP-378. Jnnunry 1995).
'"On thc onc hand. thc launch servicc cntiry nccds n mximum of infornuiion about thc expcrimcntcr's
oavload scnt inio soacc in ordcr IO assurc the sccuriw and the succcss of thc mission. as wcll as inlomiion
;bout thc rcsulis obwmrd IO bc able IO cvaluatc the kcicncy oiis launch or spacc cxpcrimcnt facility. On
ihc othcr hand. the rcscnrchini: comr>anvdcsircs to kceo i efforts .md scieniific rcsulis secret in ordcr to
sccurc iis imcsuncnis. Tlic co~fidcnii~l;ry is csscniul rir a funuc commcrcint appl8cation and cxploiwtion

a of ihc scicnt~fic
134.
rcsulis hcrcorc thc acccis IO and thc disclosurc of ihc rcsulis mut bc rcsmcicd". ibid. nt
 Having examined the relevance of intellectual property, we will funher precise its
a content in relation with space law in ordcr to have a critical view of the different

approaches.

'
CHAPTER 2. INTELLECTUAL PROPERTY RiGHTS AND SPACE LAW:

DIFFERENT APPROACHES

It is imponant to keep in mind that safe niles applied to the spacc industry can

crcate a conducive environment for current and future commercial successes. "The only

scctors in which commercial activities have bcen sustained for a pcriod long enough Io

allow for rcasonable predictions on an empirical basis concern spacc transporiation and

communications satellites.""' We will sec thai the main chancteristic of intellcctual

propcny law is that this concept is based on temtoriality, while the main featurc of outer

spacc is that it is ouiside any sovercignty. The problem is to determine how a patent can

bc protected in outer space. After a rcview of the basic legal principles concerning

intellectual propeny law, we will examine hou, may difiiculties anse when dealing with

outer space.

a P. Malanczuk. "Aciors: Soics. lntcnutionalOrgmimtions. privatc cntitics." sec supm note 26. nt 35.
 Section 1. Legal Priaciples of Intellectual Property R i g h u and O u t e r Spaee May
O Lead to Potential Contradictions:

This section will emphasizc o n intellectual propeny rights principles that may have an

impact on spacc law and vice versa.

1. lntellectual Property Rights and Patent Lnw:

1.1 Basic Mechanism:

Intcllcctual Property Rights have evolved for ~cnturies,'~bascd on a terrestrial

context, without concern about their application in outcr space. The main forms are:

Trademark. tradc secret, copyright and patent "When appropriate protection

is obtaincd and maintaincd undcr law, the proprietor (or owncr) of the righi rnay cxcludc

others from its practice, has lcgal rcdrcss in the event of misappropriation or unauthorized

practicc (infringcment), andior may authorize o r permit (licensc) others to pnctice the

right undcr acccptablc t c m s and conditions. The cxclusivc rights afforded undcr a patcnt

includc the riglit to makc. use and scll the patentcd invcntion."" In ordcr to be patcnted,

the invcntion must bc ncw. must involve an inventive stcp. and must bc indusirially

'UThchisiory of inicllcciunl propeny could bc dividcd in ihrcc m i n pcriods. disiinciion m d c by Ihc World
Inicllcciunl Propeny Organiwiion: a sysicm bnscd on privilcgcs gnnicd by Ihc sovcrcign (15" to 18"
Centuries). thc national patents (1790 IO 1883. Ihc Unitcd Sinies fini patcni Iaw wns in 1790 and thc
Frcnch Iaw. in 1791) and thc inicrnai~onalmtionstaning in 1883. "Iliiiory and Evoluiion of Inicllccnial
Propcny." sec note 1.51 17.
" Dcspiic h i cach of them can find application with spacc nciivitics. howcvcr wc will only focus on
patcnt.
'' R.F. Kcmpf. "Propricnry nghts and commercial usc of spncc stations." Inremarional Calloquium on
Carnnwrcral Use of Spacr.Sraoons. Hanouer. Fcdcnl Rcpublic of Gcmny. lunc 12-13. 1986.
 Patent law is thus fundamentally national in ils origin and in the scope of ils
a application; albeit. there exist efforts toward international harmonization. Finally.

following the appropriate Patent Office procedure and the g n n t of thc patent. the patentec

receives the exclusive right to exploit his invention. In order to detenninc a link between

a patentce or inventor and a country through which jurisdiction will be excrciscd, Iwo

main criteria can bc taken inIo account: The temtory or the nationality.

1.2 Types of Jurisdiction:

Jurisdiction is tnditionally divided in three parts: Personal, territorial and quasi-

territorial. in the case of personal jurisdiction. the State will exercise its jurisdiction

dcpcnding on the nationality of the individuals or corponte bodies having its nationality;

cvcn if thcy arc o n the territory of that Statc. This question will create some difficulties

whcn. for example, in thc International Spacc Station, the cxpenences will bc lcd by more

than one pcrson. Undcr the temtoriality jurisdiction. a Statc will excrcisc ils

governmental powers within the tcrritory over al1 persons and things. In international law.

a tcrritory includes the land, the territorial waters and the ainpacc above and paris on

which the Statc cxcrcises its sovereignty. The quasi-territorial jurisdiction is the sum total

of the powcrs o f a State in rcspect of ships, aircnfi, and spacecnft having ils

nationality?'

Apan from thcsc terrestrial mechanisms, there are also models of terrestrial

coopention. which rccognize the existcncc and protection ofjoint inventions. In this case,

>' "Gcnenl principlesapplying IO plenls." in /~IL~IIL~CIIIDI

Pmprrr~'Righu and Spoce Arrivitics in Eur~pi!
(ESA. Fcbmry 1997). al 13.

a Y For morc dcwils on ihis d~siinction.scc supra noic 14. ai 72.

each pany will cnsure the protection of the invention in ics own country on behalf of both

parties. and has an exclusive right to use it in the temtory of its own country." Sincc

outer space is undcr any jurisdiction, the protection does not extend to if. II is difficult to

refer to a specific temtory in outer spacc as activities may occur on orbit, on a spacc

station. o r on a different planet. However, this mle contains exceptions: For technical

rcasons. extra-territorial aspects of national law are applied. The classic example concems

the ships (national flag) and the airplane (national registntion). WC will sec that space

treatics d o no1 give clcar answen conceming the lcgal regime of intellcctual properly in

outer space. Nevenheless, specific mechanisms contained in spacc Iniv are used to

respond to this problem.

2. Place of lntellectuol Properly in lnternntional Space Law:

The main principles ovcmin space law c m be synthesized as followed: Outer

spacc c m bc used but not appropriatcd." and mus1 bc used for peaceful purposes?7 The

Statc is responsible for the activities of its private sector entities.'"nd the "launching

" Dr. O. Vorobicva. .'lnicllcciualPropcny Righu wiih rcspcct io Invcniions Crcaicd in Spacc". in S.
Mosicshar. R~~seurcli
and rnvrvirrorrs in ourw spucc Qabilin und inicllcciiml propcrn ri&. (Dordrecht.
1995).a1 180.
IbOulcr Spacc Trcaty. An. II. scc supn noie 2.

" Ouicr Spacc Trcaiy. An. IV: "Swies panics IO thc Trcaty undcmkc no1 IO place in orbi! around the cmh
any objccu carrying nuclcar wcapons or m y oiher kinds of wcapons of nuss desmiction. inswll such
wcapons on cclestial bodics. or swtton such wcapons in outcr spacc in any othcr mnncr. The moon and
othcr cclcsiial bodics s h l l bc used by il1 Swtcs Panics IO thc Treaiy cxclusivcly for pc~cefulpurporcs."
Ihid.

" Ouier Spacc Treaty. An. VI: "Swtcs Panics IO thc Treaty shaII bcar inimtional rcsponsibility for
(...) whcthcr such nciivitics are caricd on by govcmmcnwl agmcics or by
naiional activitics in ouicr SPJCC
non-govcmmcnml ciitiiics." Ibid.
s t a ~ e " ' ~is internationally liable for damages to a third art^?^ The Registration

Convention provides an obligation to register a space object" on which the State of

registry retains the jurisdiction and contml." Space activities are conducted in respect of

internaiional law. "including ihe Charter of the United Nations, in the interest of

maintaining intcrnational peace and sccurity and promoting international cooperation and

understanding.'"' The United Nations play an imponant mle in space activities. since

space treaties were elabonted by the United Nations Committec on Peaceful Uses of

Outcr Space. and rnost decisions in this field are made through this intcrnational

organiwtion.

Conferences took place within the United Nations, called the United Nations

Confercnce on the Exploration and Peaceful Uses of Outer Space (hereafter UNISPACE).

UNISPACE 1 (1968). NISPACE II (1982) and UMSPACE 111 ( 1 9 9 9 ) ~in Vienna

focused on the bcncfits ihai space could bnng to devcloping couniries. An imponant issue

'' Liability Convcniion. An. I (cl: "The i c m 7aunching Swic" m c m : (i) a Sotc which Iaunchcs or
procures ihc launching of a spacc objcci: (ii) a Soie frorn whosc icmiory or faciliiy a spacc objcct is
Iaunchcd." Ibiil.

'O Outcr Spacc Trcaty. An. \'II: Thc Iaunching Swic "is inlcmaiiomlly liable for &mage Io anoihcr Swtc
Party io thc Trcaiy or io its naninl or juridical pcnons by such objcci or i componcnts p m on ihc Eanh.
in air spacc or III ouicr spacc. including thc niwn and oihcr cclcstial bodies." Ibid.

" Registntion Convcniion. An. II: "Whcn a spacc objcci is launchcd into csnh orbii or bcyond. ihc
launching swic shall rcgistcr the spacc objcct by mcans of an cnuy in an appropriatc rcgist~ywhich if shall
mainwin." Ibid.

''Ouicr Spacc Trcaiy. An. VIII: "A Sotc Pany io ihc Trcaty on whosc rcgisuy nn objcci Iaunchcd inio
ouicr s p c c is camcd slwll rcoin jurisdiciion md convol ovcr such objcci and ovcr any penomcl thcrcof.
whilc in ouier spacc or on a cclcsiial body". Ibid.

" Outcr Spacc Trcaiy. An. Ill. Ibid.

'UNCOPUOS Homcpagc. scc supm notc 17.

 conccrncd the implementation of Article 1 of the Outcr Space ~reat~:' as ils provisions

arc very broad and the obligations not clcarly stated.

In 1996, a United Nations Comminee o n Peaceful Uses of Outcr Space confercncc

led to thc adoption of the "Declaration on lnternational Cooperation in the Explontion

and Use of Outcr Space for the Bencfit and in the lnterests of All Statcs. Taking in10

panicular Account the Needs of Devcloping Countncs," Pangraph 2 states as follows:

"Statcs arc frce to delcrmine al1 aspects ofthcir pariicipation in intcrnational cooperation

in the explontion and use of outer spacc on an cquitablc and mutually acceptable basis.

Contractual tcrms in such cooperativc ventures should b e fair and reasonable and they

should bc in full compliancc with thc legitimate righls and intcrests of the parties

concerncd. as, for cxmple, with intcllcctual propcny righls.'A6 This tcxt tends also to

promotc intcrnational coopcntion and facilitate thc exchangc of cxpcnise and tcchnology

m o n g states on a mutually acccpiablc basis. Conscquently, thc imponant rolc o f

lntcllcctual Propcny was fully rccognizcd for the fini timc in a United Nations Spacc

Rcsolution.

Thcrc arc no provisions in thc spacc ireatics or in the rccent resolutions adoptcd

by the Unitcd Nations Gcnenl Asscmbly dcaling with the protection of intcllectual

propcny in oulcr space. Ncvcnhcless. tltcre are two space Iaw principlcs that are direcily

connccted with this problcm: The non-appropriation rulc and the bencfits clause.

" Outcr Space Trcaty. Art. 1.: "Outcr spacc (...) shall bc frcc for cxplontion and use by al1 Swtes" m d an.
II. it "is not subjcct to national appropriation by clah of sovcrcignty. by rncans of usc or occupation, or by
any othcr means." Scc supra notc 2.
Tcxt of Dcclantion on lnternational Coopcntion in lhc Explomtion und Usc of Outcr Space for thc
a "
Bcncfie and in thc Intcrcsis of al1 Sotcs. Taking in10 Paniculnr Account lhe Nec& of the Dcvcloping
Counmcs. AlAC.IOSR.211 (06.11.96)
 2.1 Intelleetual ProperIy and the Beaelts Clause, Article 1 of the O u t e r Space

Treny:

Article 1 of the outer space treaty states that "the explontion and use of outer

spacc. including the moon and other celestial bodies, shall be carried out for the benefii

and in the intcrests of al1 countries, irrespective of their degree of economic or scientific

development. and shall be the province of al1 mankind." "Outer space. including the

moon and other celestial bodies, shall be free for exploration and use by al1 States without

discrimination of any kind, on the basis o f equality and in accordance with international

law, and there shall be free access to al1 areas o f celestial bodies." This principle titled as

"Space bcnefits," has becn afInned for the tira time in the United Nations Resoluiion of

1963."

P a n g n p h 5 of the 1996 ~eclaration"' states that "International coopention, while

taking into particular account the needs of dcveloping countries should aim, inter alia, a1

the following goals (...) Facilitating the exchangc of expertise and technology among

States on an mutually acceptable basis." Thcse provisions underline again the role of

intellectual propeny. and reinforce the neccssity to have a strong legal regimc on this

mattcr.

The protection granted. through intellectual property rights to the space industry

cover the following consequences: Invention secrecy, cxclusivity of nghls and

appropriation of technical experiments results realized in outer space. Article 1 of the

Outer Space Treaty provides that the explontion and use of outer space is for the benefit

'' Rcsoluiion 1962(XVIII)of 13 Dcccmbcr 1963. in Spacc Law and Inrrin~fionr.Documcnis and Maicrials.
cditcd by Ivan A.VIasic. InstiNic ofAir and Spacc Lnw. McGill University. 1997.

a " Sec supn noic 46.

 and in the interest of al1 countries, implying a sharing of information. "The practical
a realiution of the principle, however. depends on the operation of cooperation and

knowledge-transfer m~chanisms."'~It is more protection's excesses that is critical. States

m d industries. through the appropriation of trade secret for example, prevent other group

ofpeople to develop the same technology.

2.2 Intellectual Property and the Non-Approprintion Principle, Article II of the

Outer Spnce Treaty:

Before the Outer Space Treaty was adopted in 1967, the General Assembly of the

United Nations established fundamental basic mles into two resolutions included in the

Outcr Space Treaty of 1967. In 1961. Resolution 1721 (XVI)stated that "Outer space and

celestial bodies are free for exploration and use by al1 States in conformity with

international law and are not subject to national appropriation."50 The fact that this type of

rcsolution is not binding docs not prevent certain statcdl to consider them as

recommcndations. The second, Resolution 1967:' constitutes an important aspect in the

Cold War dcvelopment, because the United States and the USSR mainly initiated this

agreement. This anicle raiscs the same question as did Resolution 1721. "Outer spacc.

'* F. Marcclli. "Spacc Rcscarch and Common Bencfiis for lhc Humiry." in I I D~rirroIndriririale E Le
A I I I L . ~Spa:iaIt
~,~ in Europa / Inrcllccriial Pruper*. and Spacc Acrivirics in Europe. Ossc~ntoriodi ProprictJ
ln~cllcnualeConconcm 8; Tclccornunicazioni (CERADI) LUlSS - GUlDO CARLl 8; ihc Eumpcm
Ccnirc for Spacc L;iw/EuropcanSpncc hgcncy. Rom. Novcmbcr 11.1996. al 79.

Rcsoluiion 1721 (XVI) of lhc 20 Dcccmbcr 1961. "lntcmiional cmpcnlion in lhc pc~ccfuluscs of oulcr
spncc." 108' plcnary meeting. scc supra noic 47.

" Romnin and F m c c

':Scc supn note 47.
 including the moon and other cclesdal bodies. is not subject to national appropriation by
a claim of sovcreignty, by means of use or occupation. or by any other means.""

The principle of non-appropriation could be defined as the absence of tcrritorial

jurisdiction, implying also the absence of appropriation under private law. During the

negotiations of the Treaty. the Belgium delegation reminded the interpretation of this

principle, explaining that it is "covering both the establishment of sovereignty and the

creation of titles to property in private law."s For the French delegation, "non-

appropriation is merely the logical consequence of non-appropriation under intcrnational

law. Non-appropriation in the treaty refers to national appropriation under the

international law."" Under international law, outer space constitutes a r e extra

c o n r r ~ ~ e r c i l msince
l, no one can appropriate this area. Aniclc I1 of the Outer Space Treaty

is often cited as the non-appropriation principle; also interpreted as the non-sovereignty

provision.

If there is no territorial sovcreignty in outer spacc, this docs not mean that States

can not exercise their authority at all ovcr this area. Professor Bin Chcng distinguishes the

traditional aspects of sovereignty that are prohibited (national appropriation) and the

functional aspects of sovcreignty (the excrcisc of sovereign rights); distinction which is

especially important in Intellectual Property rnatters.'~tates are prevented on a uniform

" Scc supn note 2

(4.8.66) AIAC.IOSIC.USR.71 in Srudics in lnrenrorinnnl Spocc h e : by M . Bin Chcnp. Clucndon Press
Oxford. 1997. scc supn note 14.
" (17.12.66)NC.I/SR.149?,sccnotcsupm 14.
" S. Gorovc. "Sovcrcignty and Ihc Irw of outcr spacc rc-examined".Annnls of Air ond Spocc Lm: vol 11.
1977).nt 320.
 basis 'om establishing "proprietary links."s7 Although outer space is not subject to
a temtorial jurisdiction, thcre are sovercign types o f jurisdiction that can be exercised in

cenain conditions. The non-appropriation principle and the bcnefits clauses8 are two

pillars of the outer spacc treaty; thus it is necessary IO take them into considention as

well.

2.3 Jurisdiction and Control:

Article VI11 of the Outcr space Treaty States that "a State Party to thc Treaty on

whosc registry an object is launched into outer space is c h e d shall retain jurisdiction

and control ovcr such object, and over any personnel thereof, whilc in outer spacc or on a

cclestial body." In the international conventions. "space object" is the tcrm used for

spacecrafi and satclliics, and in fact "anything that human beings launch or attcmpt Io

launch into spacc. including thcir components and launch vehicles, as well as pans

thcrcof."" As the jurisdiction applies not only to spacccran but also to the personnel on

board. il is to bc considered as a quasi-temional jurisdiction. This provision constitutcs

an extension of a spccific national law to permit its applicability over thesc space objects

and astronauts through national and intcrnational registntion r~~uircments."The State

pany to the treaty that shall retain jurisdiction and control over spacc objects and over any

" Dr. K. H. B6cliicgcl. Dr. P. M. KrCrlmcr. "Paicnt Proicction for thc Opcniion of Tclccommunication
Saiclliic Sysicms in Outcr Spacc?"(Pan II). Zeirrchr$t fur Lu) und IVrlrraumrechr IUIV). G c m n Jouml
of Air and Spacc Law. 1998.

" Scc infra funhcr dcrclopmcnis on thc dcvclopingcounoics and spacc in Section 3. FuNrc ucnds
'"B. Cheng. supra noie 14. 51 463.
"Ouicr Spacc Trcxy. An. VIII. Supn noie 2 .
personnel thereof, while in outer space or on a celestial body. is the Swte in which the

object was registered.

In a certain way. we can consider that through this artifice, the sovereign rights of

a State will apply outsidc its temtory. ln a recent Dr. K. H. B6ckstiegel. argues

that thanks to this rnechanisrn, space objects and their crew maintain a link with a State

because they "do not pass in10 a lcgal vacuum dunng their sojoum in the extraterrestrial

zone." Such a proposition is valid as long as space activities arc relatcd to carth

(telecomrnunications, remote-sensing satellite, or use of a space swtion). In thcsc

conditions, the State of Registntion is adrnitted to use iis national patent law for a

specific space activity. Although this artifice is very pnctical and nccessary because it

rendcrs the law applicable in the absence of unified lntellectual Property space law; the

situation may evolve in the future when we will have IO dcal with space IO spacc

activitics, for example, the launch of a spacc object occumng from a planet different frorn

Earlh.

It is clear that a patent on a satellite can bc gnnted for the safe use of its new

tcchnology. but as ouier spacc is governed by the non-appropriation pnnciple. "the real

issue is whether patents can be protected in outer space a s outer space is outside any

state's sovcreignty."" The jurisdiction that can be cxercised concerns only the objects or

the person (this will be the casc in the new International Space ~tation).~'As outer spacc

O' "What has becn prohibitcd undcr the clcar lmguage of Aniclc II of ihc Outcr Spacc Trcaty is "nolioml
appropriation" o f outcr spacc." Dr. K. H. Btkkstiegel. Dr. P. M. Wmcr. "Patent Protection for thc
Opcniion of Tclcconununication Saicllitc Systcm in Ouier Space? (Pnn 1)". &iuchr* fur Lu/r und
Il'elrruumrechr IZLII'). Gcmun Journal o f Air and Space L w . 1998. nt 15.

*' Scc supn notc 26.31 367.

"Sec infra Pan Il.
is not a tcmtory, and a patcnt has the attributes of personal pmpcrty, how can a patcnt

rcccivc any protection?

The main inadcquacy of spacc law relates IO the lack of intcrnational bodies.

Thcrc is no national or intcrnational rcgulator of intcllcctual propcny in outcr spacc. As a

mattcr of fact, whcn a patcnt is filcd in a national agcncy. no rcscarch is made conccrning

the opponunity of the patcnt in regard to spacc law. This field is ncver taken into account.

The question was rcsolvcd in the United States by the crcation in 1990 of a spccific

domcstic law for ~ ~ a c A

c .couple
~ of rcal cases illustmtc this issue which also

dcmonstntc conflict of law.

Section 2. Illustration of the Prohlem:

1. Consequences of the Potentinl Contradictions:

The potcntial contradictions c m bc cxplaincd as followcd: On onc hand, Outcr

spacc. undcr an international statute. is a res exiro con~nrercirrn~.~~

and the main mlc

govcming this cxtn-atmosphcric arca is that it shall bc frcc for use on a pcaccful basis

and shall not bc appropriatcd. Conscqucntly, its use cannot bc rcstrictcd. On thc othcr

hand, WC have a trcmcndous dcvclopmcnt of commercial spacc activitics involving

vcnturcs that rcquirc high financial support. As a conscqucncc. protection of thcsc

opcrations through intellcctual propcny will bccomc morc and morc relevant: How c m

WC conciliate thc exclusive right grantcd IO an invcntor and the bcncfit clause of the outcr

spacc trcaty or the non-appropriation principlc? The dcbatc simultancously involvcs

" Sce supn. noic 16.

" Sec supm 2.2 Inicltccnint Propcrty Righu and Non-AppropriationPrinciple.
public international law. the frecdorn of use of outcr space. public interest. and the large

expectations of the space industry.

When outcr spacc became part of international public law, most of the players

were States and International Organiwtions. The spacc law magna canaa was elabontcd

during the Cold War and most of iis provisions relate to States. The philosophy under

thcsc space treaties is to prevent thc States to commit any claim of sovcreignty ovcr this

area. In fact. the cntire spirit of the space treaties differs from what happcns on earth. As

WC have seen abovc,6' the non-appropriation principle and the space benefit clause arc

two main rules governing spacc law. There are also provisions in the outer space treaty

that share the same goal: for example. the principle of CO-opcration and mutual

assistance,6' that is cxpresscd in the outer spacc treaty. contains the mle of dissemination

of information. Siate Panics conducting activities in outer space have agrced to inform

the Sccrctary-General of the United Nations, as well as the public and the international

scicntific community, whcn fcasible and practical. of the nature, conduct, locations and

rcsulis of such activities."" Although this obligation is not clcarly d ~ f i n c d . 7we

~ c m sec

that this type of rcquirement is spccific to spacc activities. Article 1 goes furthcr, requiring

-The 13c m i n spacc trcaties. sec supn noie 2

"Sec supn 2. Inicllccnial Propcny Righis and Spacc Law

" Ouicr Spacc Trcaty. An. IX: " In the cxplomiion and use of ouicr spacc. inctuding thc moon and oihcr
bodies. Swics Panics IO chc Trcatv shnII bc cuidcd bv. ihc .~ n n c.i d cof co-o~cniionand munial
cc~csti~l
assiswncc and ;hall conduci rlt thcir rctivibcs in outc;spacc inctuding thc moon and'thc cclcstinl bodies.
with duc regard to the concsponding intcrcsis of al1 oihcr Stries Panics Io the Trcary." Scc supm noie 2.

* Outcr Spacc Trcnty. An. XI. Ibid.

'"Aniclc XI OS is oficn criticizcd. "an absolute supinc provision, which in duc coune. provcs Io bc cvm
an cmbamssmcni." B. Cheng. scc supn noie 14. nt 404.
 thc sharc of the benefits. Even if this provision is intcndcd to assurc Swtcs act in good
a faith, and not to share the financial bcnefits o f thcir activirj.. what WC could cal1 thc

"spacc treaties spirit" rcmains. Art. XV of the Moon Treaty contains a provision that

woold also bc surprising if it had to do with earth activities: it allows a Statc Party to thc

Trcaty to visit the facilities o f one mothcr on the moon, subjcct to rcasonablc notice and

the taking of maximum prccautions Io assurc safeiy, and to avoid unduc intcrfcrencc. It is

clear that the intcnd is to avoid cornpetition, and to promote international coopention.

The goal of intellectual property rights. and espccially patcnt law is Io protcct a

spccific intcrcst through the p r o f an cxclusivc right. Once an invcntion has been made,

the invcntor will of coursc not sharc his work. nor open his door to let his compctitor havc

a look at il; the disclosurc will intcrvcnc only when he will apply for a patent. not before.

As the invcntion was dcvelopcd on canh. the qucstion of owncrship, cxccpt whcn it is the

rcsult of a joint dcvclopmcnt. docs not crcatc any spccific difficulty. In outcr spacc,

owncrship is prohibitcd. Conscqucntly. in order to safcly matcrializc the progrcss of

science, it will bc ncccssary IO conciliate thcsc principles that may appcar to bc

antagonisiic.

In Tact. the legal technique should bc a tool to encourage such devclopmcnts.

Dcpending on the intcrprctation that is given IO the Outcr Spacc Treaty. WC could

consider that in the carly agcs of spacc Iaw, the place of privatc companies was foreseen:

Rcfcrcnce is indirectly made IO the privatc sector in article VI on the rcsponsibility.

providing that States Parties to the Trcaty shall bcar international responsibility for

national activities in outcr space (...) whethcr such activities arc camcd on by

govcmmental agcncics or by non-govcmmental entities. "National activity" could be

interpreted as covenng al1 the activities that are within its temtorial or quasi-temtorial
junsdiction?'

When we explore the question of intellectual property in space activities. WC deal

wiih a growth of pnvatc companies' involvement, but also the application of concepts of

pnvatc law in a public field. "Private acton will bnng with thern into outer space a range

of legal i n s t ~ m e n t sand practices to which they are used and more confident, ranging

frorn pnvate property to cconornic and financial law up to t n d e issue^."^' Illustntion of

thesc questions c m be seen through recent cases.

As a prelirninary, wc will have to look at a specific patent nile: Thc temponry

prcsence doctrine. As secn a b o ~ c . ~a' patent confers to his inventor an exclusive right.

This principle contains exceptions. "One o f these exceptions is the temponry presencc

that provides for certain limitations on exclusive nghts in case wherc ships, aircnn or

land vehicles ternporally visit forcign countries. Such temponry presencc is not

considercd as an infringement7" of a patentee."75

" M. Fcrrszwni. "Spncc pmcticcs on thc morc". sec supn. notc 8. ai 334.

" Sc supm 1.1 Basic mcchanisms of Inicllcciunl Propeny Righis

'' "lnfringcmcnt of n patcnt consisis of thc nuthorizcd making, using. o f f a n g for wtc or sclling any
patented invention within thc Unitcd Swtcs or United Swtcs Tcrritorics. or imponing into thc Uniicd S o v s
of ony pntcnrcd invention d u ~ thc
g t c m of the patcnr" Infrinpncnt of a patcnt. US Patent and T n d c m r k
Olficc. online: chirp:llwww.uspto.gov/wcb/~~i~erlpa~/do J

" R. Oosterlinck "IntcttccNal Propeny and Outer Spnce Activitics." (Lcciurc on Space Law. h t i ~ l of
c
Air and Spacc bu..McGill University. 1998)[unpublishcd]. nt 36.
 The question has been raised as to whether this doctrine would apply in the case
a of spacecraft. Before the question ofapplicability of patent law on spacecran \vas nised,

couns had to look at claims conceming ships. h e Federal Coun hcld in 1865 that US

Patent Law applies to a US merchani vessel on the high ~ e a s . ~The

' 1952 amendments to

the Patent Code includcd a definition of the United States that limited the patent laws to

thc finy States. territories and possessions of the United States. The question \vas

formulated by the Couri of ~ l a i m as

s ~10~whether US Parent law would apply to ships.

Concerning the spacecnft based on the "integraied instrumentality" criteria, the Coun

hcld in 1 9 6 6 ~that
~ US Patent law applies to an invention practiced on an orbiting

spacccnR bccause the control stations are located on the US ~ e r r i t o r y .In~ ~1981, US

Congrcss stated that spacecraft are vchicles and consequcntly, their prescnce is

t ~ m ~ o r a r yUniil
? ~ more recently, the main cases dealing with the problem of intellecrual

propcny in outer space are Hughes Aircraft Co. v. United States and TRW v. 1CO Global

Communications.

"Gardiner v. Howc. 9 Fcd.Cascs 1157 (1865).

'%oscn u. NASA. 152 USPQ 757.

'' Sce gcncnlly 1. B. Gantt. "Spacc Siaiion Inicllccnial Propcny Righo and U S Patcni L w " . in
Procer.ilings of an inremarional ColIoquiuni on rltc Manncd Space Srarions - L c g d issues. Paris 7-8
Novcmbcr 1989 (ESA SP-305 Fcbmary 1989).

m42USC Enacuncni. 8 2457 (1 ).

 2.1 Hughes Aireraft Co. v. United States 29 Fed. CI. 197 (1993):

- Patent description: A US patent81 wa filed in April 1960 by Hughes AircnA

Co. (HAC). This patent was aimed at creating a system to gel and mainiain a

satellite attitude on orbit. It covered an apparatus for the spin axis orientation of

spin-stabilizes space vehi~les.~'Proper attitude is nccessary in order to allow the

satellite 10 properly aim ils directional antcnnas in ordcr to fulfill communications

missions, and in some platfom architectures, to orient the solar energy collectors

to supply electrical energy to the payload.83 The Patent was issued on I I

Scptcmber 1973, recciving the name o f his inventor, Williams. Between 1974 and

1984. NASA used this technology in sevenl spacecnfts which had no link with

the US temtory exccpt that they were launched by NASA. This international

pro- contained scvenl spacecnft; Helios (Gemany and US). I S E E ~(ESA

and US). Ariel (NASA and the Science Rescarch Council of the UK) and

AMPTE~'(Gemany and US, Gemany and UK).

- Lawsuit: An action has been brought by HAC against the United States pursuant
to 2 8 USC 1498 secking just compensation for unliccnsed use o r manufacture of

" (US 3.758051) "Vclociry conirot and oricniaiionofa Spin Swbitizcd Body."
" Sec in Copyright rC 1998 The Burcau of National Afiirs. Inc. BNA. TRADEMARK D COPYRIGHT
LAW DALY ( April24. 1998).
" B. .. . - the Provisions of tlie Ouicr Suace Treatv Io
L. Smith. E. Msuoli. "Problcms and Realitics in A~ntvinc
Inictlccnial Property Issues". Papcr prcscnicd ai ihc 1997 Iniemaiionnt Insiiniie of Space Lah ~ o l l o ~ u ~ u m
during thc Intemiional Asoonauiicat Fedeniion Congress in Tunn. (IISL-97-IlSL-3.05).
The Inicmaiional Sun-hnh Explorer Prognm.

a " nie Active Magneiospheric Panicle Tncer Explorer.

founeen spacecnfts containing the patented device. The litigation lasted ten years

before the first decision was finally reached.

- Legnl issues involved: Section 1498(a) of title 28 of the United States Code
contains the following provisions: "Whenever an invention descnbed in and

covercd by a patent of the US is used or manufactured by or for the United States

without licensc of the owner thereof or lawful right Io use or manufacture the

same, the owner's remedy shall be by action against the US in the US Coun of

Fedenl Claims for the rccovery of his rcasonable and entire compensation for

such use and manufacture." 11 imposes liability on the govcmment if three

conditions are met. There must be use (1). use must bc "by or for" the US (2). and

the use must be within the US" (3).

(1)As the word "use" was not d e h e d by Congress, the US Coun of Fedenl

Claims statcd: "For purpose of this case, it is imponant to consider whethcr

launching a spacecnfi constitutes a use of the patent. Hughes Aircnfi makes clcar

that the availability of the attitude control system on the spacecnfi at a lime when

the spacecraft is being operated constitutes a use of the patent." II also had to be

determined whether the spacecnfi used by the govemment constituted an

infringemcnt of the Williams patent: Spacecrafi were foreign-manufactured,

foreign-owned and launched from the US temtory but from command centers

outsidc the US. For the govcmment, there was no "use" within the US a s if

concemed foreign satellites and if by any chance, the "use" was established the
 temporary doctrine would prcvent the qualification of infnngement to apply. For

the Fcderal Coun of Claim, "it is the spacecrafi as a whole whose use constitutes a

use of a patent."87

(2) Considering the control cxercised by the govcmmcnt over this project. the

Fcderal Coun also held that "those cases stand for the principle that US

involvement in a joint international space program will bc sufficient to makc any

use of the spacecrafi a use "by" or "for" the govcrnmcnt within the meaning of

$1498 (a) if the project is a cooperative one with the potential of substantial

benefits to the US."" As WC can sec this is a very broad intcrpreta:ion of the law

that is allowcd hcrc, following one goal: the applicability of the U S Patent Law.

(3) Finally. the judges had to determinc the applicability of $1498 10 activities in

Outcr Spacc: "We nced not decidc whcthcr international law prohibits the

extension of Our patent laws to activitics in outer spacc on foreign spacccrafi

becausc WC conclude that Congress has not cxtcnded $1498 10 cover those

activitics. Pan of $1498 statcs that it "shall not apply to any claim aising in a

forcign country". As outcr spacc is not a forcign country, the question was niscd

as to whether the aniclc would apply or not. Based on the dccision Smith v.

United ~tatcs?' it was decided not to apply this provision to outcr spacc.

"Sce supn note 33. al 108.

" Huches Aircnn Cn. v. Unitcd Smtcs. 29 Fcd. CI. 197 (1993). Journal ofSpacc Law, 1996. al 185.

'"About $1498 (a). 'hc prcsumption is m i e d in a numbcr of consideniions. no1 the levt of which is thc
a common-snsc notion thai Congrcss gcncnlly Icgislates wih domcstic conccms in mind." Smith v. United
M.
113 S. Ci. 1178.1184 (1993).
 The Court also did an analysis of the US Code and held that the patent law has no

cxtntemtonal effcct. Finally, the government was declared liable for three of the

spacecn.

This case encoungcd the adoption of the US Space Bill: In 1990. section 105 \vas

addcd to Chaptcr 10 of titlc 35 United States Code, called "inventions in outer space"w

extcnding the applicability of US Patent Law to US registered spacc abjects?' In fact. this

Act docs not apply to "any process. machine, article of manufacture, or composition of

matter. an embodiment of which was launched prior to the date of enactment of this Act."

It is highly plausible that the Court would have applied the Space Bill if the launch had

occurred before the enactment of the Act. But even in that case. there is no definition of

what conslitutes an infringcmenl.

It is clear that the US domestic law does not resolve al1 the problcms. Moreovcr,

WC will sec in TRW v. ICO Global Communicntions. that although the US Spacc Bill

authonzcs the extra-tcmtorial application of US Patent Law o n space objccts. it does not

covcr cvery situation.

2.2 T R W V. I C O Clohal Communications:

- Patent protection: The Company TRW, partner with Teleglobe in the Odyssee
project, planncd to launch twelvc satellites in medium carth orbi: in order to start

the commercial exploitation in 1999. ICO Global Communications, whose major

investor is the International Maritime Satellite Organization (INMARSAT). also,

Scc supm noie 16.

a
YO

'' Sec infm the Chapicr 3. Scciion 1. thc Unilcd Swics

 planned to launch twelve satellites on thc medium earth orbit and stan in the year

2000. TRW filed a first patent with the United States Patent and Trademark

Office. as a way to protect ils systems.g' The company decided in 1992 to extend

the protection in Europe by filing a European ~atent." In 1995, a new US

patent,w concerning this lime the use of medium E m h orbit was created. The

European corresponding patent was also filcd?'

- Lnwsuit: At that fime, ICO Global Communications, a British company, planned

10 launch iis satellites on the same altitude. 6.300 miles. TRW decided in 1996 Io

sue ICO in Los Angeles Corn, claiming that ICO had infnnged on ils patent.

- Legnl issues: The elemcnts of the c l a h had the following c h m c t e r i s t i ~ s : ~ ~

Launch of a constellation ofsatellites Io between 5,600 and 10,000 nautical miles

above the Eanh. at least one satellite to have a reduced antenna field of vicw, less

than full canh average, the satellites to bc oriented in a plurality of predetemined

orbital planes. recciving ndio frequcncy signais by at least one satellite from a

plurality of mobile handsets with omni-directional antennas, overlapping of a

ponion of the covcragc region of a dcpaning satellite with a portion of the

covenge region of an arriving satelli~e. and predetemined criteria for the

'' serial paient n. 071688.412 (01.22.91)

'' application n. 92300781.9(01.30.92)
"serial patent n. 5.433.726 (05.16.95)
'' European Paient EP 510 789 (March 1997)
s
Sec supn. noie 83. ai S.
 assignment of calls to or from users within the coverage overlap region from a

depariing satellite to an m'ving satellite. The first pan o f the claim, the location

of the satellites. is the most critical point of this case in regard to the intcllectual

propeny problem.

The TRW mobile communications system has been protected in such a way that it

would have been impossible to launch satellites on the same orbi^.^' As a

consequence. ICO Global Communications would bc prevcntcd from realizing ils

project. The TRW patent constitutes a clear violation ofthe Outer space Trcaty:

- Patent und OST: Article 1 providcs that the "use of outer spacc ...shall bc

carricd out for the benefit and in the interest of al1 countries". and on article II,

"Outer space ...is not subject IO national appropriation." Not only TRW's patent

would prevent a British compctitor to develop its own system, but it also attempts

to reserve an "orbital s h ~ 1 1 " ~ ~ o uthe

n dearih through its patent. The patent

provides a monopoly over the use of the earth orbit.

This case was dismissed in the first instance. as no infringemcnt had yet occurred

bccausc the satellites were still undcr construction. A judgmcnt against ICO Global

Communications would have rcsulted in an injunction. which would have cnhanccd a

tremendous loss as this project was evaluated al SUS 4 Billion in installation and five IO

tcn rimes that sum in rcvcnues.

'' "The main claim of this patcnl may bc intcrprctcd as rcscrving an orbital "shcll" surrounding thc canh
bctwccn the altitudes of 5600 and 10.000 mutical milcr. for vimally nll conccivablc pmctical applications
in thc field of sntcllilc-bucd communicntionsto mobilc hndscls." Sec supra n o e 81. ai 5.

Scc supra. notc 83.01 5.

 The partics finally came IO an agreement: On Decembcr 1997, TRW decided to
a drop its patent infnngement lawsuits against ICO in return for a seven-percent share in

ICO. However, it would have been interesting to see if the couris had invalidated the

patent or not from the outer space Treaty viewpoint. Not only did the United States ratify

the Trcaty, but this convention is also considered a s international customary law. "ln vicw

of the broad adherence IO the Outer space Trcaty, including al1 States having significant

space capabilities and the absence of any objection to ils principles, it is persuasive that

rnost of the provisions of the treaty have now become part of the customary international

law. binding upon States which have not ratified the ueaty, or even upon any siate which

miht choose to w i ~ h d n u , . " ~In the current developmcni of the satellites

tclecomrnunications system. the intellcctual propcny rnight be used stntegically by

States. "Beyond the TRW gnnting controversy and its dispute with ICO Global

Communications, any future grant of exclusive nghts over any pan of outer space by a

national agency may bc contrary IO international ~ a w . " ' ~

Section 3. Future Trends:

Considering the future of spacc law and the current status of satellite

constellations, there arc two main aspects. which have to be examined: The impact of the

satellite space infrastructure and the role of the developing countnes. Therc are nurnerous

Ciiniion of n 1989rcpon IO NASA by a icnm hcndcd by R.B. Bildcr. n professor of Law ai IIICUniversity
of Wisconsin. by Hnrrisson H. Schmitt. "Spacc Trenry Pcrmiu Resource Usc': Spce Noir. No22 (Junc
17. 1998).

a lm S. Mosicshnr. "Sniclliic Consicllntion Pnicni Clnim Somc Spacc Law Considcntions." in

T~IecommunkarionsandSpaceJournal, (Scrdi Publshiig Company. vo1.4. 1997). ai 252.
projecdO' implying the launch of satellites constellation on outcr space, and the number

of satellites involved d i f i r s 'om one constellation to another. Usually, a constellation is

made up of ten to twenty satellites. In some cases, it can be morc. For examplc.

~ e l e d e s i c ' ~includes
' morc than 200 satellites. As they will need a lot o f place in outer

spacc, a difliculty will a i s e for the compmies planning to launch their own systcm in the

samc area; such as in the case of TRW v. ICO. The place taken will be such that it will

gcncntc a de facto "appropriation" of outer spacc. Moreovcr, in coming years. the

number of satellites will undoubtedly increase the dilemma of spacc debris. The

Subcommittee of the Committee on the Peaceful Uses o f Outer ~ ~ a c erecently

'~' focused

its attention on space debris mitigation mcasures. If we take into account future trends.

even if such measurcs are applicd. it is hard Io bclieve that the debris will substantially

dccreasc.

The currcnt tendency in space activities is Io mark a distinction behveen the

"space powcrs" and the States, which arc currcntly no1 dealing with spacc. It is diflicult to

rcconcile the "free exploration and use by al1 States" of outcr space and its use and

cxploration "for the interests and in the benefii o f al1 countries."

"Space could be of hclp if the intcrprctation of t e m s such as "common heritage" were

agreed on and sensible ~ l c for

s the regulation of compctition in space elaborat~d."'~

Spacc law could also be used IO prevcnt the appropriation or the disrcspcct of the benefit

ID,
For cxamplc: Globalsmr. Skybridgc. Tclcdcsic. Ellipso. Orbcomm.

"'Thc major invertors arc Mhi. Bill Gares and Cnig McCaw.
IO>
Rcpon of thc Scicnrific Commincc on rhc Work of ils ihirty-filth session. GA Rcs. NAC.1051697.
(02.25.98)
IO(
E. D. Gaggcro. "Devclopingc O U ~ U and
~ S spacc, from awarcness Io pmicipaiion." Space polic): May
1989.
 clause by the files of patent or by any other means. The question of space benefits is a
9 current issue with the Comrnittee on Peaceful Uses of Outer Spacc. and the UN

Declmiion adopted in 1996 is expected Io have a great impact between States in the near

future.lO' The Declantion expressly mentions the intellectual property rightstw and also

rccommends a cooperation in "promoting the dcvelopment o f space science and

technology and of its applications."i0' This Declaration "cements the frcedom of the

exploration and utiliwtion of outer space but at the same time reminds the space powers

to fulfill their obligations to conduct thcir activities for the benefit of al1 countries in a

productive and mutually acceptable b a s i ~ . " ' ~Finally.

~ we can also expect that the

recomrnendation adopted ai UNISPACE III will be implemented in the near future 10

havc the fastest practical application.iw

Considenng the questions raised previously, what type of lcgal f m c w o r k should

be adopted? Pnor to a proposal attempt, we will review and cnticize the levels of

harmonization. i.c. national, regional and international.

Ibid.
la'

IW
Pnmgmph 2 of the Dcclmtion. scc supn, notc 46.

'O' Pangnph 5 of the Dcclmtion. Ihid

Io' M. Bcnk6 and K.-U. Schrogl. "Frcc w c of oufcr rpacc" v 'Spacc Bcncfifs". supm note 26.

lm Scc supm notc 17.

 CHAPTER 3. FOR A LEGAL FRAMEWORK

ON INTELLECTUAL PROPERTY RlGHTS

In ordcr to protcct the spacc indusy and to limit conflicts of law, il is ncccssary

IO apply an intcllcctual propcny law to outcr spacc. Sincc the United Statcs have choscn

to clabontc a national Spacc Bill. it is now appropriatc for othcr countrics to have a

rcgulation. The main problcm is to dctcrminc the lcvcl of rcgulation: Will this law bc

govcmcd at the national, rcgional or international lcvcl?

Section 1. The National Level:

The claboraiion of national policy and law rclatcd to spacc activitics is an

incrcasing phcnomcna."O Howcvcr, most of the couniries involvcd in this arca of pncticc

did not adopt spccific rcgulations. Intcllcctual propcriy is of course a grcat conccm for the

Statcs. considcnng thcir space program and spacc industry: and appropriatc mcasurcs

should bc takcn for countncs which will bc implicatcd in the ncar futurc.

Aftcr a shon rcvicw of Intcllcctual Propcriy Domcstic law, WC will sec how

uniform mlcs o f Iaw could takc place ai this lcvcl. WC will also look ai the wishcs

formulaicd by Statcs in thc course of the ESA questionnaire that was scnt Io spacc

Itu
A rcccnt Aci. the Ausuilian Spacc Activily Acl (No 123. 1998). was nsscntcd IO 21 Dcccmbcr 1998.
Thc objccu ofthis Act arc:
(3) Io cswblish a system for the rcpulaiion of spacc activitics camcd on cither from Ausualia or by
Austmlian nntionals ouisidc Ausualia: and
(b) Io providc for the paymcnt of adcquatc compenwiion for h g e causcd IO perrons or propcny ns a
rcsuli ofspacc aciivitics regulaicd by this Act; and

a (c) Io implcmcnt c c m i n of Ausuilia's obligaiions undcr ihc UN Spacc Trcatics.

 industry a c t o r ~ . ~and
~ ' whose conclusions were presented at the Madrid Workshop in
a 1993.'" With the exception of the United States (US Space Bill), there is no legal regime

governing die extension of national Intellectual Propeny law to registered or non-

registered space objects. This question is controvenial for Gennany (due IO a special

ntification of the International Space Station lntergovemmcntal Agreement), and Russia

(with ils Russian Law on Space Activities).

1. Europenn Countries:

In Bclgium. the Intellectual Propeny law could be applicable to outer space if the

extra-temtoriality of the law was admitted, because the place of the invention is no1

linked to the patentability conditions. In Denmuk. national patent law is applicable for an

invention created in outer space but not for its utilization in outer space."' The Dutch

Patent ~ c t " ' docs not extend to outer spacc, and in the case of an infnngement,

protection can be grantcd by Domestic law cxclusively on Eanh. In F m c e , the French

Patent AC^"' does no1 apply to space activities. The CNES policy is to elaborate the legal
framework on a bilateral and rnultilatenl basis and case by case. Even though intellectual

"' Industries. govcmmcntnl agcncics. scicntific comuniiy. Icgsl pmciiiioncrsand scholars

"' The Worlishop on Inicllcctual Propcrty Righ orgnnizcd by the Europcan Centre for Space Law w u
hostcd by thc Spanish Centre for Spacc b w : sec thc questiomirc nnd Ihc rcvicw of Ihc w w c r s in
Procecdtngs ofrhe Ftrsr ECSUSpanisb Cenm/or Spacc Law IVorkrhop on lnlcllecruol Propcny Righu in
Ourcr Space. hladrid. Escucla Diploniarica. (May 26. 1993).al 106.
111
Sce Kobcnhsvns Universiiy. ibid.

"'The contcn of Ihc Dutch Paient Act (Dcccmbcr 15.1994. entcrcd in10 forcc in Apnl 1995) are now
closcr to Ihc EPC. scc supm nolc 32. a1 79.

"'Frcnch Intcllcctusl Propcny Act. intmduccd by Law No. 92-597 of July 1992.
 propcrty law c m apply through the registration - and it is considercd by CNES that no
a difference cxists between experiment results obtaincd in space or on Earih - vacuums are

rcgulated by contwcis. For example, in the legal protection of remote scnsing data with

regard to intellectual propcrty: A copyright protection is ganted by CNES to Spot Image

through contncts.""

Some pmblcms rcrnain. such as the dctcrmination of the applicable law Io an

infnngement in outer space. In Sweden, the exclusive nght is also limitcd to the tcmtory.

but the tcmporary prescnce doctrine seems IO have a broad application. Section 5 of the

Swcdish Patent Act states as follows: "The utiliwtion o f a patcntcd invention in a forcign

vcsscl, aircrafi or other foreign means of communication for its own needs when

tcrnporarily cntering Swcdcn in regular tnffic or othcnvise is not considercd an

infnngement." As a consequence a broad intcrpretation of "other forcign mcans of

communications" could lead to include space abjects."' The German Patent ACI,"' likc

United Kingdorn. docs not providc any patent extra-territorial application. Howevcr, the

German Act of 13 July. 1990, was cnacted following the implcmentation of the 1988

K A . With thc new I G A , " ~ Gcrmany modificd this n t i f i c a ~ i o n . ~This

' ~ provision docs

no1 mean that any space object registcred by Gcrmany should be under the jurisdiction of

that country. The Intcrgovernmcntal Agreement is a spccific agreement only applicable to

the International Space Station. The samc pnnciplc govcms European countries; the

"'C. Blcrnont, G. Oscar. C. Thibauli. "The Pnciical and Lcgal Vicwpoini ofthc French Space Agcncy."
CNES. see supm. noie 26.

"'Sec supn noie 33. a1 82.

"'Sec infn. Pan II.

a ':O
- -
"Any aciivity occurring in or on the ESA registered elcmnii is for lhc purpose of the proieclion of
indusial propeny rights and copyrights deemed IO have occurrcd in Gennany."
 protection of the exclusive nght limited wiihin the boundarics of the country und iheir
a national patent does not apply to outer space except through ihe registration mechunism.

In that cac. a country will exercise iis control over the space object.

2. T h e non Europenn Countries:

2.1 Cnnada:

Likc Europeun countries, Cnnada is governed by a first-to-file system. here is no

Act related to space activities. The protection of lntellectual Property is made in bilateral

agreements und in the contncts. In the case of research und Development contncts.

Canada has adopted a policy on ownership of lntellectual Property ~ights"' which is

limited to govcrnment legislation contncts.

2.2 Jnpnn:

In Japan, once again, there is no specific law dealing with outer space. NASDA

shall transfer an ownership of un industrial propeny right from the contnctor und obliges

the contnctor to disclose al1 technical information derived under contnct to NASDA."'

Aniclc 26 of the Japunese Patent ~ c t " ' staies that "if a special provision is provided for

in a Treaty with respect to a patent, such provision shall govern."12J Although this

provision is no1 useful at present, as therc is no treaty dealing with the question of

'-"Undcr thc ncw policy (1991) on owncnhip of intcltccwl propcrty ("IP") arising from Govcmmcnt
conmc involving R&D. IP rcsulting from thc pcrfomnncc or ihc c o n a c l s is prcsumed to vest wilh thc
conmctor. unlcss thc ConvDcting depanmcnt dctcrmincs thai Crown owncnhip is justificd. Scc R. S.
Lcfcbvrc. "lntctlccninl Propcrty Righ and Spncc Activitics Canndian Pcnpcclivc und Point of Vicw:
Canadian LWS. sec supra note 26.

'" T. Yokw. NASDA'S Activities and Intcllcctu~lPropeny Righ. ibnl. nt 54.

'" "The Pntent Law m d thc cnforccmcnt Inw IhcrcoT' ( L w No. 121 of 13 A p d 1959. as 1 s t amcndcd in
1987) ( "Jnpancsc Pnicnl Act"). sec supm notc 33.
a "'IbM. nt 58.
intellectual property rights in outer space. we can imagine that the situation may b e

different in a couple o f years. It would happen if, for example, an international law o f

patent in outer space was elaborated through the World Intellectual Property

Organization. In that case, such a provision becomes highly intriguing, because once

Japan has ratified the international agreement, the provisions on patents become directly

applicable through article 26 o f the Japanese Patent Act.

The Russian patent law is based, like the European countries. on a first-to-file

system. The entire legislation was modified in 1992"' as a step toward the market

economy. In 1992. the Russian Federation adopted a law on Space Activilies. This lext

contains specific provisions on patent law: Reference is made to the respect of intellectual

property legal requirements o f the Russian ~ e d e r a t i o n .and

~ ~ ~the propeny rights are

regulated.t27 Following anicle 17 (2). "the Russian Federation shall retain jurisdiction and

control over space objects registered in it during the ground time of such objects. at any

stage o f a spacc flight o r stay in outer space, on celestial bodies as well as on their return

to the Eanh outside the jurisdiction of any State." Despite the existence of these rules, can

we consider the Russian Patent Law applicable to an infringement occurring in outer

1:)
Effcct ofthc Patent Law on September 23. 1992.
':'Anicle 4 (3) of the Russian Law on Space Activities of 1993 provides that "space activitics as well as
dissemination of infomution of space activities shall be carried out with the observation of the
requiremcnls stipulated by thc legislation of Russian Federation on the protection of intcllccwal propcny
r~ghts,sole (military includtng) and commercial secret act."
"'Aniclc 16 (4) of the Russian Law on Space Acdvitier of 1993 provides that "the propmy righe over the
physical product created in outer spacc shall belong to the organizations and citizens powsing propeny
rights in the components of space tcclvriqucs uscd to create such products, unless athenvise specified by
relevant agrccmenls. The propmy right over the informntion product created as a mult of spacc activities
shll belong to the organizations and citizens that Lvc crcatcd hat informtion product unless othcnvisc
specified by relevant ngrecmene."
space? Considering article 4 (3) and 17 (2). Dr. Olga Vorobyera considers that there is

enough legal basis Io admit the applicability of the Russian legislaiion "to the use of

inventions and other objects of intellectual property protected under Russian ~ a w s . " " ~

This interpretation is casily accepted as Thc Russian Spacc Act contains somc provisions

to assure the protection of intellectual property rights and we could logically consider that

the use is included in this protection. Neverthcless, if a conflict &ses between Iwo

countries, for example the US and Russia, sincc US Space legislation is already

established, the interpretation of the Russian Spacc Act is too uncertain to convincc a

judge. The Iaw here should be more precise Io ensure its applicability to the use of patent

in outer space, and IO be sure that any unlawful could permit to go to a Russian Coun. An

important provision should finally be recalled here: In case of conflict between the rules

of the Russian legislation and that of a foreign State as they apply to space activities with

thc participation of Russian firms and citizens, the legislation of the Russian Fcderation

shall prcvail.'2P

Taking into account the provision of the space treaties rclating to jurisdiction and

c o n t r o ~ the
, ~ ~United
~ States have elaborated specific legislation on patents in outer spacc.

The adoption enhanced some debates between lawyers from Europe and the initiators of

tlic rcform."' In 1990 the Unitcd States passcd thc Space Patent ~ c t " ' which added

1:s
O. Vorobycri. "Intcllecnial Propcny Righu and Spacc Acriviiics: Russim Expericncc and point of vicw.
scc supn note 26.31 49.
's Aniclc 28 (2) of the Russian Law on Spacc Activities.
"'SCC supn. noie 15.
"' Scc infra Pan II. debate about thc Space Bill.
Il?
See supn note 16.
 Chaptcr 10 of titlc 35 of the US Code. The US Space ~ i l l " ' introduces anicle 105 in titlc
a 35 U S C : Inventions in Outer Space: "Any invention made, used o r sold in outer space

on a space object or component thereof under the jurisdiction or control of the United

States shall be considcred to be made, used or sold within the United States for the

purposes of this title, except with respect to any space object or component thcreof that is

specifically identified and othenvise provided for by an international agreement to which

the United States is a party, or ...camed on the registry of a foreign state in accordance
with the Convention of Registntion of Objects Launched into Outcr Space." This

provision follows the "flagship principle"i'4 a s applied to vessels on the high scas. or

aircnfi flying over international waters.

The aim o f this Bill was to extend the patent law protection extra-temtorially. As

a consequence, it is a unilateral extension of a national law, which usually only applics IO

a certain t c m ~ o r y . " Ncvenheless,

~ such an extension will only apply to space objects. not

IO outcr space itself. This type of legislaiion contndicts thc international coopcntion that

iakes place in space activities. The Intergovernmental Agreement containing the rules

applicable to the Pannen of the International Space Station is an illustration of this

c o ~ ~ c n t i oItn becomes
. ~ ~ ~ difficult IO conciliate the preexisting international rules and the

contents of a domestic law. Similar conflicts to the TRW case may stan again in the ncar

Publishcd rn Paient. Copyright

Il.
US Senate rcpon on S 459. P.91. "Exunimitorid application of the paient laws." 1990
"' "( ...) ir ma? br scen rhar US pafcnr l m * moy bc applied ro rhc aidcrr fcrrirory oui o/rhis sorld. and
porenriui!v rvcn ro/orcign-oofncd and opcrared spacrcraj which hovc n o w wcn rouhed US soi1 !".by
A.M. Balrano and B. SmiL, supm noie 26.

a " Ar Tor cxmplc the anicle 16 cswblishinga cross-mivcrsysiem of liability.

 future. In ordcr to constitutc a violation of the law, an act of infingemcnt rnust takc place
a in thc United States of Amcnca, its territories and but the US patcnt law

docs not givc any prccise dcfinition of infringerncnt.

Evcn if thc US Spacc Bill appcars to solve the question of applicable law in a

majority of situations. WC still do not know which acts constitute infnngerncnt in the

tcmtory. In addition. thcrc is also a pcrccived ncgativc role which can play in thc truisfcr

of tcchnology. and the fear of monopoly of spacc technologies by a fcw countrics is not

unique to spacc activities. Conscqucntly, a clcar dcfinition, a sanction, and a way Io

cnforcc that sanction should bc providcd in order to apply the samc mlcs to al1 States

without considention of their domcstic law.

As scen abovc, the place wherc the invention was made is not relevant in most of

the countrics. In somc cases, thcrc arc intcresting elcmcnts in the Dorncstic lcgislation of

Japan (ariiclc 76 of the Japmcse Act). Swcdish law (with its broad inicrprctation of the

"tcrnponry doctrine"). but nonc of them contain sufficicnt mlc to assure the protection of

the usc of the patent.

At a national Icvcl. at lcast two issues could bc discusscd: The adoption ofspecilic

laws dcaling with Intellcctual Propcny in outcr spacc. or amcndments to Domcstic laws

for an extra-territorial application. The fint solution would lcad undoubtedly Io a mosaic

of national laws and cnhancc conflicts. This unccnainty will not provide tmst in space

invcstrncnts. The second solution will rcndcr cach law applicable to space objccts

launchcd into outer space. This situation is alrcady covcrcd through thc rcgistration

proccdurc, and such a solu~ionis insuficicnt, as thcrc is no w q to solvc the unlawful use
of a patent. WC would come up to a level of protection that would be completcly differcnt

from one country to the next. Notions such as "infnngement" or "use" would be

interprcted with different approachcs.

In the second and third levels of approach. we will try to determine. on the basis

of current niles, how a uniform solution could takc place. either at a European lcvel, or at

an international levcl.

Section 2. The Regional Level:

Anticipating the necessity IO protect the internal market that was staning to takc

place in Europe. a European Patent system was elaboratcd in 1973, entcnng into force in

1977. the European Patent Convention. hercafler the EPC. With one application. the

protection is granted in cach individual Signatory Statc of the Convention thanks to

standards niles. The tenitonal lirnits arc maintaincd as opposed to the Community Patent

Convention. hcrcaRer the CPC providing a supranational patent within thc European

Union.

The CPC, datcd Dccembcr 1989. is still not cntered into force. "The cnicial

significance of the Community patent for thc European internal markct lies precisely in

providing protection which tra\erses the internal bordcrs in this market. embracing and

covering the entire interna1 market of the European ~ n i o n . " " ~ h cEuropean Patent

Office will have a great role IO play in the implementation ofthis mechanism.

111
A. Kricgcr. "Whcn Will the Eumpcui ComuniIy Patent Finally Amvc.?" in Inrcrnarional Rrview of
Indusrrial Propcrp alid Copyrijlir Luw. (Vol. 29. No. 8. 1998).ni 857.
 The space agcncics. and cspecially the European Spacc Agency, havc bcen
O considcriiig the problcm for a couple of ycars. As a rcsult, somc initiatives havc bccn

taken through this Agcncy. In Junc 1997, The European Commission adoptcd a Grccn

Papcr on the Community ~ a i c n t . "T~h c parties wcrc invitcd to offcr any suggestions. The

Europcan Spacc Agcncy replicd through its Dircctor Gcncnl. urging thc Europcan

Commission to takc into considention thcsc issues by adopting a spccific legislalion on

inventions in Outcr Spacc.

Thar samc year, a rcsolution on the Grcen Paper was adoptcd by the Europcan

Parliamcnt, with on the 9" paragraph a spccific provision for spacc activities. It is

considercd that thc Europcan Patcnt should assure thc protcction of inventions that arc

madc or uscd onboard spacccnfi and satellites, protcction is not guaraniccd by the currcnt

Europcan lcgislation. This rcsolution is a plca for the crcation of Community Patent

rcgulation.

More rcccntly, in a Communication from the Commission IO thc Council, the

Europcan Parliamcnt and the Economic and Social Committcc. actions and

rccommcndations wcrc claborated on the community patcnt and the nccd of

complcmcntary harmonization of national l ~ g i s l a t i o n . ' ~The

~ main fcatures of a

Community patent arc cxposcd in $2.3 of the ~ommunication~"and the question of

inventions madc or uscd in spacc is dircctly addrcssed. Thcir protection through

Il0
Grccn Papcr on ihc "Community Patcnt and thc Paicni Protection Systcm in Europc - Promotion of
Inovniion hrough Psicn." Junc 24. 1997. COM (97)314 final.
IW
"Communicaiion from thc Commission to Bc Council. the Europcan Psrliamcni und thc Economic and
Social Commiiicc, Promoiinp, innovaiion h o u & ptcn. <hc follow-up to the Grccn Papcr on the
Community Paicni und thc Paicni sysicm in Europc." COM (99)42.
141i
T h c naturc of thc Community paient must bc uniwty. il must bc affordablc. it m u t gunmntcc Icgsl
ccwinty and musi cocxist wiih cxisiing paient sysicms." Ibid.
leislation is considercd as an imponant step forward for the space industry: "II is vital.

given the substantial European involvement in the International Space Station and the

absence of specific European lcgislation defining the protection of commercial nghis in

the case of value added technologies applied or developed in orbit, that such legislation

be introduced for patents and liccnses. as has been done in the United States, and is

currently being preparcd in Japan and ~ussia."""

\Vhat kind of appmach should bc adopted regarding space activitics? Shall we

create a Directive. an EC Regulaiion specific !O ouier space related inventions, keep the

European Patent Convention, the Community Patent and include pmvisions on this

matter?"" An interesting suggestion was made by O. ~ o s s u n that

' ~ would simplify the

entire system: The replacement of the CPC and the EPC by only one Europcan patent.

Thc need for a unitary systcm of protection by patent is expressly mcntioned in the 1999

Commission ~ommunication."~

Almost al1 the Europcan couniries. when answering IO the ESA study, a ~ r e e don

the nccessity to harmonize the European law although the choice of forum was differcni.

For Belgium. Germany. Ireland and the Netherlands. the PCT docs not seem IO bc a good

soluiion, as the validity of the patent will be limited !O emh.'Jb for Italy. an international

code of conduct should be adoptcd.

142
42.3 ofthc Communication. lbrd
"'XI. Sclimittmnn."Conclusionsof the s ~ d for
y ihc Europcan Spacc Agcncy." supn note 113. a1 59.
'" O. Bossung. "Rciurn of Europcan Parcni Law to the European Union." lnrcrnnrionol R c v i ~ woj
In<lttsrrrulProp- und Cupyrrgltr L m : 27 1IC 287 (1996).
"'Commlssion Communication 82.2. sec supn noie 142.
'" Scc nnswcr of thc Bclgium dclcgation. sec supm note 113. at 119.
 The fomm of h m o n i w t i o n could be ESA (Belgiurn, Gcrmany. UK), thc Europcan
a Patent Office (Dcnrnark, Ncthcrlands). EC Regulation (Germany, UK)or a coopcntion

bctwecn the two (University of Amsterdam, Netherlands). The main pmblcm conccrning

the PCT is the fact that iis application is rcstrictcd to thc tcmtory and does not rcgulatc

the cffccts of the patcnt, as it is limited to the gant. The CPS has many advantagcs: II will

contribute to thc frce movcmcnt of goods,"' prcvent the "forum-shopping." cnsurc

uniform protection, and guarantcc lower fccs.

Pnor to this chaptcr conclusion, WC will examine the cvcntuality of an

international regulation.

Section 3. Common Regulation at an International Level?

The idca to crcatc a world patcnt is not a ncw phcnomcnon. Among the studies

that havc bccn writtcn on this topic. a world patcnt applicable IO spacc has cmcrgcd. This

section is not aimcd at rcitcrating the difirent regional patent systcms that cxist on carth

and the intcrnational conventions on this topic. WCwill focus on some of thcm which arc

of panicular intcrcst in thc course of the prcscnt study, and sce if this levcl of rcgulation is

dcsirablc.

"'Aniclc 30 of thc Europcan Union Trcaly. onlinc:

a chitp://wuw.europ~.cu.i1/cur-Icx/cdU~ali~J1nde~.hml~
1. Through Global Initiatives: The 21" Ceatury a s "Era of lntellectual ~ r e a t i o o " ~ ' ~

Patcnt protection pnctice is mostly uscd in European couniries. Japan and thc

United States, as approximatcly 85-90% o f total patent activity in the world takcs place in

thcsc n a t i ~ n s . ' ' ~Thc globalization of the law of patent is a phcnomcnon that is taking

place in most of the intcllcctual propcny lcgal fnmcwork.

In Europc. the Pans Convention could bc considcred a pioncer in the clabontion

of the international law of patent; the main drawback being the obligation to file in cach

country wherc protection is necdcd. The concept o f a unitary patent wa born in Europe

with the European Community Patcnt ~ o n v c n t i o n In

. ~the
~ ~ United States. the intcgrated

systcm was planned to takc placc through thc Nonh Amcncan Frec Tradc Agreement,

whosc approach went f' ahcad of the Paris ~onvcntion."' In Japan. a rcccnt repon by

the Commission on "Intcllcctual Propcny Rights in the twenty-first ~ c n t u r y " ' ~to' the

Japanesc Patcnt Officc conclusion \vas bascd o n the insufficiencies of the currcnt

legislation a s rcstrictcd by a country's boundarics. Among the Commission's proposals

was the creation of a global paient. Apan from thcsc thrcc main players. it is crucial IO

mcntion the Eurasian Patcnt Convcntion ("EAPC"), crcatcd by twclvc countnes of the

"'Toward ihc E n of lnlcllcclual Crcation. Challenges for Breakihrough. Rcpon of ihc Commission on
Intcllectual Propeny Riyhu in ihc Twcnry First CcnNry to Ihc Commissioncr of the Japancsc Patcnt Oficc
(Aprll 7.1997). citcd by G. J. MossinghofTand V. S. Kuo. World Patent Systcm Circa, 2O)CX. A.D.. scc
supm notc 8. at 523.

''"M. N. Mellcr. "Planning For A Global Patent Sytcm." in Joitrnal ofrlic Parcnr and Trachniark OBce
Socicn. Junc 1998. ~01.80.No.6. at381.
2%
Sec supm Scction 2

"' NAFTA extends ihc concepis of national treamcnt undcr Ihe Paris Convention across ail Iiclds of
intcllcctual propcny. Sec supn noie 8. nt 532.

"'Ihid. notc 8. a1 150.

 former USSR."' The filing of a Eunian patent can be donc with a single application.

with a single payment at the lime of the filing and in a single language. This patent could

serve as a "mode1 for the next generation o f multinational patent systcms."'~

The question came to ils apogec with the Tmde-Related Aspects of lntellcctual

Propcrty Rights ('TRIP'S"). "By hamtonizing substantive patent d e s m o n g the world's

major nations, TRIP'S clcarly set the stage for the next steps in effective multinational

patent protection."is' With the development of international commerce and the

development of electronic commerce, the protection of a patent restricted to the country's

bordes will become less and less justified. Moreover, if rcquirements to file a patent may

differ from one country to another, the basic rules governing the protection is more or less

similar. This reasoning Icd Intellectual Propeny au th or^,^^^ followed by the patent

aencies, to dcfend the idea of a global patent. This will be of course an ideal situation,

wherc a patent will be grantcd on a worldwide basis, under the supervision o f an

international organization.

Such a reform has already staned through the coordinated work o f national and

regional aencies. Considering the task that has to be accomplished. the implemcntation

of the world patent will not take placc overniht.

"' Armcnia. Azerbaijan. B c l a ~ s .Cicorpia. Kmkhswn, Kyrgyz, Moldova. n i e Russian Fcdcniian.

Tajikisian. Turkmcniswn. U h i n c m d Uzbckistan.
1).
S u p n noie 8. a1 540.

"'Supn noie 8. ai 532.

L. C. horcau. "Necdcd: A New System of Inicliccnial Propeny Righu." Hannrd Businesr Rcnni:
Scpi-Oc! 1997. ai 95. M. N. Mcllcr. scc supra noie 123. G. J. Morsinghof, sec supn note 8.
 The Patent Cooperntion ~ r e a t ~ " allows
' the applicant to file an "intemational
a application" in several countries. The h m o n i w t i o n is more on the form, content and

procedure though, the final grant still belongs to the national or regional patent office. In

order to gct closcr IO a real uniform systcm in the substantive pari of the law. the PCT

will link to the Patent Law Treaty (PLT). A Diplomatic Conierencc will take place from

May 11 to Junc 3, 2000 that will lead 10 the possible adoption of this ~ r c a t ~ . The
'~'

World Patcnt system, which will siart with common mles on the procedure is coming up

soon.

And now this question cornes into play: If we take the hypothcsis of an invention

made or used in outer space, is the elaboraiion of such a system desirnble?

2. Shnll W e Hnve n Specinc Internntionnl Intellectunl Propcry Lnw For Spnce

Activities?

The proposition that dealt with thc crcation of a spccific regulation did not plan to

integrate the new system in a future world patent, but IO adopt specific mles Io outer

space. In the conclusions of the study for the European Spacc ~ g e n c ~it, was
~ ~ proposed
'

IO regulatc this question through WIPO, in combination with World Trade Organization

and with the assistance of the United Nations Committee on the Peaceful Uses of Outer

Spacc. II was also proposed IO considcr outer spacc as an area where a uniquc set of

international niles would apply. The WIPO would t e in charge of the important issues

"' l'hc Paicnt Coopcntion Trcafy is cntcrcd inio forcc on January 24. 1978. II nlso dcnls wiih
slnndnrdiwiion of administmtiveproccdurcs.
such as g m t and inftingem~nt.'~
n i e cennalization of the legal matters would limit the

conflicts and help avoid the delicate question of temtory.

The implementation in the near future of these provisions is less probable, as a lot

of rime will first be required to elabonte the new treaty. and cstablish the responsibilities

ai national and international levcl. In addition, the process of ratification is always very

long, and since the United States patent system is based on a different approach, (the first-

to-invent nile), the bringing togeiher of this legal system with the first-to-file is desirable.

This cvolution is being implemented.

Finally, in case of an unlawful act sanctioned by a Coun, this question.

unfonunately, the same one concerning international law anses: How to enforce the

decision? It will be hard to mobilize the "patent community" for the question of

invention in outcr space. However. debates on the question of a world patent might bc

casier.

Furthermore, in the course of a study lcd by WIPO in 1997. the conclusion was

that no specific provision were absolutcly ncedcd, and "due 10 other priorities. no spccilic

project relating io outer space is foreseen in the cumnt budget and program of WIPO."'"

As a consequence, in a first step. favor should be given to large regional systems

( c g . NAFTA, Europe. Eurasia. South East Asia) in which a specific legal framework on

intellectual propeny in outer space could bc implemented. In Europe, protection of

inventions made or used in outer space through the Community Patent would guanntee a

l m R. Oosterlinck. 'Tangible and inmgiblc propeny in outcr spacc." in Pmcecdings of flic 39'~olloquiuni
on I/IP low of OuierSpoce. 271-283 (1996).

'" T. Miprnoto. "Spacc-rclatcd Aspects of Intcllccrud Propniy: WIPO's Role and Activiiy." scc supn.
note 8. ai 107.
good legal framework. In one hand, it would avoid the problem of extra-temtorial

application of national law in space. enhancing the absence ofconflict of law. and on the

other hand, bring a uniform enforcement of patent in the Europcan Union. Spacc patent

could be part of this framework: The Community Patent regulations could be considercd

applicable IO any invention made or used in outer spacc on a space object registered in a

Europcan country. This provision should provide the sanction of an unlawful

infringement by a European Coun.

During a tnnsition period (about one to five years). patent agencies will closely

collabonte on the elabontion of the world patent treaty. which will apply to al1 kinds of

application. Special attention will have IO be made to high technology (computer

copyright software, space technology). in a second stcp, it will be necessary to explain

and convince the counhics to takc pan into a world patent system.

WC should keep in mind that most of country's legislaiion is bccoming similar.

For cxample, Russia and China have adopted standards similar to the US. Europe or

~ a ~ m . 'This
" will favour the evolution expectcd.

The International Spacc Station lcgal f i c w o r k is a tool that will also encounge

the standardization of Intellectual Propery Rights. Although the international agreement

governing the relationship bctwecn the participants IO the International Spacc Station

provides specific niles about iniellectual propeny, it provides only the basic principles.
 PART II
a INTELLECTUAL PROPERTY AND T H E INTERNATIONAL SPACE STATION

The civil Internaiionil Spacc Station. hereaRer ISS, constitutes one of the rnost

ambitious projecis bctween countries in tcrms of international coopention. In the 1950's.

the US govemmcnt considercd building a space station. The project Skylab was initiatcd

undcr the Nixon Prcsidcncy. and \vas placed into orbit in 1973. Although this labontory

had a shori life span, il gave the opponunity Io astronauts, who later bceame scicntists. Io

experience this station in space until eighty-four daYs.''' Sevenl missions were then

clabontcd for human space flight: Space shuttlc, Spacelab, Salyut and Mir. The scientific

community agrecs that the cxperienccs rcalizcd in the Russian station arc a significant

source of information for the futurc ISS. A g c a t amount of work was donc on human

behavior during long spacc missions and funhcr studies are now necessary, for example.

for future Mars missions.

In the slatc of the Union Addrcss of January 2, 1984, Presidcnt Reagan gave to the

National Aeronautics and Spacc Administntion (NASA) the responsibility to build and

pur inio orbit a manncd spacc station. Hc also offered member States of the Europcan

Spacc Agency, Canada and Japan to pariicipatc in this project. Negotiations siartcd and

' ~ finally signcd our y e m later in Washington D.C.on Septcmber

the ~ g r e e m e n i was

29. 1988.

te2
Sec supn. note 150.

la' W. Astorc and J. Sellcrs. "Enterinc Soncc". scc suvn note 22.
'" Aprccmcni nmong thc ~ovcrnrnc; i f thc United Soies of America. Govemmcnts of Mcmbers Sotcs of
the Europcnn Spncc Agcncy. thc Govemmcnt of J a p u and the Govemmcnt of Cnnnb on Cwpcniion in
 With Russia's inclusion in the pmjcct.i65 new negotiations look place between the

former pariicipants and Russia thmugh a succession of meetings between 1994 and 1997.

Thc aim of thesc meetings was to corne up with the "ncw IGA in 1 9 9 ~ . " ' which
~

displaycd a signifiant evolution bctwcen the different p a n n e s r e l a t i ~ n s h i ~ s . ~ ~ ~

Locatcd bctween 335 and 460 km above the earth, with a mass of 400 tons, the

spacc station is considcred as a multi-use facility in low earth orbit with the spccificity Io

be cvolutionary. Fony-six launchcs are planncd between 1998 and 2004 to assemble the

modules. Because of this long penod of lime. it will bc necessaty to add some elements

on the existing one before the launches are complcte, and aficr the completion, becouse

the life span of the station has been fixcd at around fifieen years. The main intcrest of the

ISS is to work for a long penod of timc under micmgravity conditions. The concept of a

ncw spacc station was. and still is highly criticized. The project is costly, (S20B to

SIOOB), and part o f the scicntific community is skeptical conccming the practical

applications of the space station. Moreovcr. solar radiation and spacc dcbris constirutes an

imponant risk for this infnstructurc.

In a more optimistic light. this projcct is a fantastic opponunity for research.

Activitics on board the space station will include "fluid and materials science

expcnmcnts. crystal growth for commercial application,i6' combustion experimcnis to

ihc Dcoilcd Dcsign. Dcvclopmcni. Opcmtion and Uiiliwiion of the Pcmcntly Manncd Civil Spacc
Station. Iicrcaficr lhc "lnicrgovcmmcntalAgrccmcnt". or "IGA".
'"'On Dcccmbcr 17". 1993.
ILThc second agrccmcnt was signcd in Washington D.C. on thc 21" of Janrwry. 1998.
"'This Agrccmcnt will rcplacc thc 1988 IGA.
'" On the spccific qucstion of protcin cryswl cxpcrimcn. sec M. Harrington. "Proicin Cryswllogmphy
Scrviccs on thc Intcmtional Spacc Swiion." the papcr summnrizcs previous rcsul from micmgnvity
 improvc cnergy and propulsion sysrcms. human physiology cxpcrimcntation for long
a duntion flights and for actual mcdical rescuch. biological rescvch and

biocngincc~ing."~~~
Simulation of Flight for lntcmational Crcw on the Spacc ~ t a t i o n " ~

staned dunng the summcr 1999 at the Statc Rcsearch Ccntcr in Moscow to study thc

c f i c t s of isolation in the hcrmctic chambcr. In fact, the analysis of the physiological and

psychological cffects bcfore and alcr thc flight are simultancously for spacc and carth

applications.17i

An intcrcsting cross-cultural cxpcriencc was conducicd conceming the i n t e p i i o n

ofRussian Soyuz Spacccralt for the E S . Among the differcnces that will havc to be iakcn

into account (c.g. units of mcasurc), the notion of leadership is sccn diffcrcntly:

Amcricans are uscd to distributcd management and frcqucnt changcs in personnel.

whcrcas Russians arc more accustomcd to ccntralizcd management. a single spokcspcrson

and fcw changcs in On canh. thc prepantion of ISS missions will also

rcquirc qrialiied people from a divcrsity of profcssions. who c m crcatc ncw opponunitics

for futures gcncrations. Thc ISS has becomc more political iool. sincc Russia entcrcd the

program in 1993. Ncvcnhclcss. the inicmalional cxchangc gcncrated by ihc projcct will

havc positive conscqucnccs on the international sccnc.

proicin cryswl growh cxpcrimcnisand dcscribc thc fncililics envirioncd for the Intcmniionnl Spacc Station.
chttp:lln~w.isunct.cdu~Symposium~symposium99lOnl%2OAbsinc~nmngion.h~l>

IeR. Monti 2nd R. Snvino, "hlicrognviry Sciences", supn note 22. nt 17-58
"" SFlNCSSS99.sce i n f n noie 171
or or cxamplc. invcsiigaiions arc madc on the cffcciivcncssof equipmcnt and thc inicmciion of scvcnl
intcmntionnl groups. Scc "SFINCSS Projcci Sccnnrio". Pnpcr dclivcrcd nt the Intcrnaiionnl Spnce
Univcrsiiy Summcr Scssion Prognm. on August 14. 1999. [unpublishcd].
"'~ndrcw Pcuo, NASA Johnson Spncc Ccnicr, Houston. "lnicgrntion of Russion Soyur Spncccran for the

a Intcrnntionnl Spacc Siaiion." (Intcmtionnl Spncc University Summcr Session Prognm on August 14.
1999).[unpublishcd]
 Finally. the lntcrnational Space Station also constitutes an important commercial

project. The US 1998 Commercial Space Act requires NASA Io encourage commercial

utilimtion of the ISS. This objective is clearly stated in the cxecutive summaryi7'

prepared by the NASA Office of the General Counsel in Seprember 1999: "The long tcrm

objective of the commercial development plan for the lntemational Space Station is to

establish the foundation for a marketplace and stimulate a national econorny for space

products and services in low canh orbit. where both demand and supply are dominated by

the privatc scctor." Sevenl provisions of this unique text of international law are original.

Questions rclated to lntellectual Propeny have this fcature.

CHAPTER 1. THE LEGAL FRAMEWORK

The legl framework governing the International Space Station is composcd of

thrcc levels: The Intergovcmmental Agreement. four Memoranda of Understanding

betwcen the Spacc Agencics, and the lmplcmcnting Arrangements. The

Intcrgovcrnmental grecm ment'^', hcrcaftcr, IGA. contains the main pnnciples that guide
the fivc Panners panicipating in this unusual project. The Fivc Panners arc Russia.

Unitcd States. Japan, Canada and Europe. with cleven tat tes.'^' An international

rrgrcernent creatcs the same rights and obligations as a Treaty made but the choice, by the

171
NASA Olficc of thc Gcncnl Counscl. cxcculivc s u m r y on "lnicllcctuol Propcny and ihc Intcnuiioml
Spacc Sotion: Crcotion. Usc. Tmnshr. and Owncrship and Proicciion"
I i ~ i n : / l w w w . h o . n ~ ~ . ~ ? n ~ ~ I n ~ ? ~si~mmarv.htrnl
IissIcxcc
Ii' Sec supn notc 166.

a
United States for an executive agreement, was essentially to avoid the C o n p s s

ntification.

Section 1. A Unique Frnmework Under lnternntionnl Law:

1. Mnin Lcgal Provisions of the IGA:

In order to fully examine the question of intellectual propeny, we mus1 tirs1 look

at the main l g a l features governing the space station, to better undcrstand the spint of

this Agreement. The fini point of this study is to determine whether a space station cari

be qualificd as a single space object. Under ariicle II of the Registntion Convention:

"When a space object is launched into eanh orbit or beyond, the launching Statc shall

register the space ~ b j e c t . " ' C

~~m we consider that a space station is one space object?

Since any spacc objcct has to be registered (article VI11 OST),"~ the whole space station

would bc registered by a single procedurc. The consequence of this qualification should

not bc neglected as the registntion determines the jurisdiction and control ovcr the space

o b j c ~ t . ' ~In
' such an intemational p r o g m . it would mean the junsdiction by a single

Statc over the modules bclonging to the fitleen contracting ta tes."^ Past experience has
shown that it is a delicatc matter: When United States stmed the constniction of the

shuttle, a memornndum of understanding was signed with Europcans to consiruct a space

17' Wc will sec in Chnptcr II Scciion II ihni the qunlificntion of "Pnmcr" for Europc uivotvcs irnpowni
conscqucnccs ai thc lcvcl of ihc mcrnbcr Soics.

"'Convcniion on Rcgisimiion of Objcc hunchcd inio Ouicr Spncc, sec supm. note 2.
"'Sec supra. note 15.

"%niclc VI11 of Ihc Ouicr Spncc Trcaty. scc supm noie 15.

'" Evcry ttmc n ncw rnodutc is addcd to ihc spncc soiion. ncw rcgismtion witl bc rcquircd.
labontory. The Spacelab was under the jurisdiction of the United States, and some "flight

opponunities" were offercd IO Europeans. "Another lesson of national self-intcrest and

maneuvering appears here: The shuttle four years laie had crcated somc animosity

bctwcen allies. When the first Spacelab succecded, the Europcans still cornplained ihat

thcy had not gotten their money's wonh out of the ~ e n r n r e . " 'In
~ ~that kind of hypothesis,

a State is best Io not be under the jurisdiction of another one involved in the same project.

The fact that these space p m g m s are of an international dimension does not prcvent

conflicts of interest.

This is why the dnners of the IGA chose a sepante regislration by each

~anner."' According to anicle V of the IGA, "each pnrtner shall register as space objects

the flight elcments listed in the Annex which it provides." Consequently, "each Partncr

shall retain jurisdiction and control over the elerncnts it registers and over the personnel in

or on the Space Station who are its nationals." This mlc cnhances spccific conscquences

for the European ~ a n n c r . ~ Thc

" utilization of the station is characterizcd by a shanng

system. The use of each pan of Panncrs 'module is dctermined by a specific allocation"'

and "thc Panncrs have the right to bancr or seIl any portion of thcir rcspcctivc

allocations."'*

Funhcrmorc, the provisions on the utilization of the space station arc unusual too.

Panncrs who providc rcsources in the stations shall bc given a fixed pcrccntage of the use

I*"
S. C. Goldman. "lntcrn~iionalAlTain and NASA': in Americun Spuce Luii: (Iowa Swtc University
Press. 1988). ai 145.
'" ESA is in charge of ihc rcgistmtion for ihc Europcan parmen.
":Sec infm Chrpicr II. Section II.
 of any of the othcr modules. Consequently, non-pmtners will have negotiate with the
a panners as to how they can utilize the specific allocation^.'^^
IO

In order to assure the continuity of the program, as many space agcncies and

contractors are involvcd, Panncr States agree IO a cross waiver of liability.ts" The system

applies no1 only on ai the panners' level, but also for the coopcrating agencies,

contnctors, subcontnctors. etc. ... There are a few exceptions Io this nile. and one of

them concerns intellectual property c ~ a i m s . ~This

~ ' provision underlines once again the

relevancc of the required level of protection.

In addition, article 1 of the IGA, covering the entirc agreement, States that ' a i s

Areement is to establish a long-term international coopentive fnmework among the

partncrs. on the basis of genuine pannership." Like the question of cross waiver of

liability. this provision constitutes a transposition of pnvate law to public international

relations.is8 The legal fnmcwork is more a juxtaposition of mles as each Partner State

cxcrcises its jurisdiciion and control over its module. Neveriheless. the wish containcd in

the IGA remains the pursuance of a genuinc pannership dcspite the political

---

la' For cxample. the Japancsc Agcncy rcccivcd 51% of thc user accommodations on thc Japmcsc
Experimcni Module (JELU.
IU
IGA Aniclc 9.

'O' For cg.. conccming thc ESA module. Europe is cntitlcd to use 51% and lhc US 46.7%. whilc Russin
rewins 100% uiiliw:ion ovcr iis own modulc. Thc uiiliwtion rcpanition is determincd in the Mcmomndum
of Understanding.

'" "Alihough thcsc provisions arc far froni bcing icsicd by miional couns. thcy would constinitc ai this
point, the "sotc of the an" liability provisions in an intcmaiional spacc cndcavour. and thcy arc alrcady
finding thcir way inIo oihcr intcmaiional agrccmcnu."A. Fannd. "Thc lcgal rcgimc applicable Io the spacc
station coopcmtion: a canadian pcrspcciivc. Annols ofAir andSpuce Lm: 1992 Pan 1. vol. XVII. al 299.
"'Sec IGA Aniclc 16.
'"'"ln ordcr IO rcnlly gct IO ihe r w f of il. wc have Io think of n pnvatc pnrmcrship onsposcd or anslatcd

a into the parmcrship of naiions." K. J. Maddcrs. "The p m c r s h i p Conccpt and Intcmatioml Mnmgcment
and ihc dcbacs conccming Parmcrship". in 1Irc Procecdings of the Colloquium on Monncd Spocc Slurion.
Legol Aspcc (1989). ai 82.
 ~onsideration.'~'T h e IGA contains rules which. taken together. could be seen as

constituting a particular legal rcgime for the Spacc ~ t a t i o n . " ' Although
~ ovenll

management of the spacc station has been entrustcd to the United tat tes.'^' Russia will

have a role to play. "The new IGA is still consistent with the closed partnership

approach."iP'

Finally. financial obligations arc subject to a Partner's funding procedures and the

availability of appropriated funds.''' The same type of agreement was signed between the

European Panners and the United States concerning the spacelab.iw

2. ICA and Iatelleciual Property Righis:

The IGA contains the main feature on Intellectual Propeny and exchange of data

and goods. However, work on their implementation ai national level and modalitics of

application rcmain to be donc.

'" "European Panncn" did no1 scck IO panicipate in the am cric.^ space station" prognm with
. .
internaiional oanicioation hui IO assurc a "cenuinc oanncrshio" for thc ; m m i i o n a l suacc swtion." K.
Taisuz~wa."the International coopcntion on the spacc soiion." in Pmcec<lifig ofthe 33d Colloquium on
die /<ri%, of Ouier Spnrc (Amcrican ~nsiiniicof Aeroruuiics and Asuonautics. 1990).

'*' A. Fannd. "he Inicmaiional Spacc Smiion and the Proicction of Intcllcctual Propcny Rights." sec
supra noic 27.

'"An. 1.2: T h e Pamiers w.ill join ihcir efforts. undcr the lcad mlc of the Unitcd Swies for ovcnll
managcrnent m d coordinaiion. io crcate an inicgnicd iniernaiional Spacc Soiion."

'' A. Farand. "Spacc Swiion Coopemtion". in ESA BuIlcrin. (No. 94. May 1998). ai 51.

'"'ICA Aniclc 15
IYI

a "The obligations orthe Govcmmcnt of the Uniicd Swies of Amencn md of thc Eumpcan Parmcrs shall
be subjcct Io thcir rcspeciivc funding procedure." Spacclnh Agrccmcni. sec N. C. Goldnun. Amcrican
Spocc L a w (Iowa Swie Univcnily Press Ed.. 1988). ai 146.
2.1 Mechnnism of Article 21:

The IGA r e f e ~ s ' ~ to

' article II of the Convention Establishing the World

Intellcctual Propeny ~ r g a n i z a t i o nto~ define

~~ "intellectual propeny."197 The choice of

this dcfinitior. will assure stability in case of any misundentanding concerning the

intellectual propeny. In the case that experiments would takc place aboard the space

station with grcat commercial applications. the question o f the bcnefits would be raise and

conscquently, this article has been the source of long discussions in the course o f ils

adoption.

2.1.1 Cencral Procedure:

IGA Partnen States have chosen a multi-territorial appmach. The principle

governin IPR in 92 is that "an activity occumng in or o n a Space Station flight element

shall bc deemed to have occurred only in the temtory o f the Partner State of that

elcmcnt's registry." Consequcntly, each Partner will be able to apply its domestic law to

its clement and personnel. With this mechanism. national legislation is cxtcnded extn-

tcmtoriality through public intcrnational liiw and the nationality of the inventor is not

taken into account.

In the case of ESA Mcmbcr States, the situation is vely original: "for the elements

registcrcd by ESA." an. 21 $2 statcs "any Europcan Panncr may deem the activity to have

occumd within ils tcmtory". A lesal fiction has been elabontcd to solve this question in

"' Soc Aniclc 2 181

,y0
Stockholm. July 14. 1967.
II:
"lntcllcctual Propeny shall includc rights rclntrng IO: [Il litcmrj. mistic. and scicntiic works; 121
pcrfomances of pcrfoming antsu. phonognms and bmadcsrts; 131 inventions in al1 ficlds of h u m
cndcavor: (41 scicntiic dtscovcrics: (51 indusmal dcsigns; [6] a d c m k s . services marks. and commcreial
nnmcs and dcsignntions;171 protection against unfair compctition; and III nghis resulling from intcllccnial
activrty in indusuial. scicnttfic. litcnry or anistic ficlds."
 Europc. but in practicc, this provision gcncratcs ~ o m ~ l i c a t i o and
n s ~involvcs
~~ imponant
a consequcnccs at a Europcan ~ c v c l ~ ~ ~ .

In case of an invention by a non-national of thc flight clemcnt. "a Panncr Statc

shall not apply its laws conccrning sccrccy of inventions so as to prcvcnt the filing of a

patcnt application in any othcr Panncr Statc thar providcs for thc protection of thc sccrccy

of patcnt applications containing information that is classificd or othcnvise protcctcd for

national sccurity purposcs."'w For cxamplc, i f an Europcan astronaut, an ESA cmploycc.

makes an invention in the US module. hc or shc has the choicc of the place to file thc

patcnt without consideration of the US lnvcntions Secrccy ~ c t . " ' The condition hc has Io

follow is that the lcgislation of the country choscn must contain provision for thc

protection of the sccrccy of patcnt applications containing information that is classificd or

othcnvise protcctcd for national security purposc~.'~' This mlc c m bc explaincd by the

fact that in the United States. during the six months following the filins of a patcnt in the

US. the filing in a foreign country is prohibitcd.20'

To avoid the risk of muliiple rccovcncs in Europc. a spccial provisionzw wa

claboratcd by the IGA's DraRcrs. For cxamplc, if a patcnt is protccted in nvo or more

,Y"
Scc tnfm Section 2
'" Scc infra Chaptcr II Section 2
'" Aniclc 21 8 3
'O' US Inventions Sccrccy Act. 35 U.S.C. Sccs.lB4
'O'Scc gcncnlly J. B. Ganit. "Spacc Station InillcctuaI Propcny Righis and US Patcni Lad'. in
Procc~.<lrngsof on Inicniortonul Colloquiuni on flic Alrinncd Spocc Srnrions. Lcgnl issucr, Paris 7-8
p m b c r 1989 (ESA SP- 305. Fcbruary 1989).al 79.
Scc supn.
'Whcrc a person or cntiry owns intcllcctual pmpcny which is protccicd in more h t onc Europcan
Pmncr Swte. th21 perron or cntiiy m y no! rccovcr in morc h i one such Soit for ihc smc act of
a inlringcmcnt of thc umc righis tn such intcllcciual propcny which occurs in or on an ESA-rcgistcrcd
clcmcnt." Aniclc 21 g 4
 European counmes, a patentee will not be able IO recover in more that one European
a country when dealing with an act o f infnngcment. As a result, the patentee has the

opponunity to choose whcre the procedure will start. Here again. the difference bctween

national laws will have a great impact. becausc the patentee will choose the Statc whose

lcgislation is the most favonblc for hirn. In a case when the invention is owncd in Iwo or

more European P a n e r s . the coun may g m t a temponry stay of proceedings in a later-

liled action pending the outcome ofan earlier filed action.

Finally in ordcr to avoid litigation, and %ith respect to an nctivity occumng in or

on an ESA-registered element. no Eumpean Panner State shall refuse IO rccognize a

license for the exercise of any intellectual propeny right if that license is enforceable

under the laws of any Europem Partner Statc. and compliance with the provisions of such

license shall also bar recovery for infringement in any European Partner tat te."^^^ As a

consequence, a licensc gnnted in one Europcan country should also be rccognized in

othcr European countnes. The protection of intellectual propeny must rcceivc the samc

protection in each ofthem.

The last paragmph of micle 21 coniains an innovativc provision. Indeed, it

provides ihat it will not only apply IO activities in or on the station flight clement. and also

IO transitory activities such as the launch or the return from the station. The temponry

prcscncc doctrine. bascd on the Pans Convention, is consequently extcnded in article 21

6'06 to flight clcments. Usually. limitations on the cxclusivc "ghts given to the invcntor

'O' Aniclc 21 5 5.
:m
"Thc icmpomry prcscncc in the iemtory of a Parmcr Suie of any aniclcs. including thc componcnu of a
flight clcmcni. in mmii bciwecn any placc on hnh and m y flighi clcmcni of the spacc siniion rcgistcrcd

a by nnolhcr Swic or ESA shall no1 in iisclf form lhc basis for any proccedings in lhe fini Pamcr Suie for
patcnr inrnngcmcnt."
arc affordcd in the case of ships. aircrafi and land vehicles that visit tcmponlly foreign

countries..

2.1.2 Hypotbeses ofApplication:

WC will Arst consider situations wherc ESA mcmber States and ESA rcgistcred

clcmcnt arc not involvcd. and whcrc a Panner, Japan, United States. Russia or Canada has

an activity in its own modulc: That Partncr will bc able 10 apply its own Domcstic law

bccausc the module and its components werc registercd in his country. If a Panner has an

activity in or on a flighr clcmcnt that do not belong to his country. the activity shall be

dccmcd to have occurred only on the tcmtory of the Partnet State whcrc the elcmcnt is

registercd. Conscqucntly. a Russian astronaut mking a rcvolutionary discovcry on the

dcvclopmcnt of plants in the US module would bc considercd to have rcalizcd it on the

US tcmiory. In thcsc cascs. thcrc is no choice concerning the applicable law of spacc

activitics. Morcovcr. thcrc miglit bc no link bcnvecn the nationality of the owncr of the

rights and the Statc whcrc thc applicable law will takc place.

New. W C will introducc the ESA-registcrcd clcmcnts: A Partncr has an activity in

or on ESA-rcgistcrcd clcment. Although aniclc 21 docs not contain provisions on this

hypothcsis. WC can considcr that thc Panncr has thc choice of the Europcan partner Statc

jurisdiction.

Finally. ESA mcmbcr States arc directly involvcd in the following situations: An

ESA nicmbcr State has an activity in or on a flight clcmcnt of a non-Europcan Panner.

Hcrc, the law of the Statc that registercd the flight clcment where the activity

occurrcd is applicable. And if finally. an ESA mcmbcr Statc has an activity in or on an

ESA-rcgistcred clcment. any European Partncr State may considcr the activity io have
 occurrcd within its own t e m t o ~ y . ~This
~ ' solution is the most unusual and of great interest
a on an European ~ i e w p o i n t . ' ~ ~

2.2 Practical Consequenees Enhnnced by Anicle 21:

The law of the State ofjurisdiction will apply IO the IPR and IO the infringement.

In this case. a problem will arise: How will the different panncn deal with the scientific

activitics having commercial applications? Although coopcntion and genuine pmnership

chancterize the "IGA spirit." what kind of behavior will astronauts adopt during the

cxperimcnts? II will be extrcmcly important not IO divulge any expenence pnor the filing

of a patent.

Conflicrs of law between domestic laws will probably arisc. With each Panner

exercising ils jurisdiction and control over ils flight elcment, we will have a kind of

legislation "patchwork." and we will probably be confrontcd with conflicts of law. In

ordcr to rcach a uniform application of the ICA between the mcmber States,

harmonization o f Intellcctual Propcny law is required. Conceming Europe, Mrs. Balsano

undcrlincd the fact that the unification of the genenl problem of intellcctual propeny

rights in outer spacc in Europe should. al the same lime. take into account the

requircments includcd in the ICA.'" Sincc it is stated in anicle 16 that thc cross-waiver

of liability do not apply IO aniclc 21. the clarification of the applicable law in each

Panncr is espccially relevant in Europc.

207
Scc infra Scction 2.1
:O,
Scc infra. Clwptcr 2. Scciion 2.

'O>"As a first stcp. thc Suics conccmcd will have to procccd with the idcniification ofpossiblc obswclcs to
bc surmowitcd if liamontmiion is to bc achicvcd md. ns a second sicp. thcy musi nsscss the rcsults of the
harmoniwtion proccss alrcady underway in Europe in tc licld of lPRs in ordcr to dcicnninc whclher such
a a proccss c m influcncc or rcspond IO the nccd for the protcciion of IPRs dcsipncd or uscd onboard the
Spacc Suiion". "lnicllccnial Propcny Rights and Spacc Aciivitics. in ESA BuIlcrin (No. 79. 1993-94).ni 40.
 An other issuc concems inventions that can only has space applications, what will
0 happen, as sale is not pcrmined in outer space? Moreover. if the invention can only be

used in outer spacc, what can be done in the case of infnngement?

Moreovcr, in order to implement 93 of article 2 1 on secrecy, which statcs arc

considered by the US to "provide for the protection of secrecy of patent applications

containing classified information or othenvisc protccted for national secunty purposcs."

Undcr which criteria will thesc States be selected? The choice might bc very subjective.

Morcovcr, sincc the cross waiver of liability do not apply Io article 19, it is important Io

clarify the law applicable to each P a m c r and also in Europc.

Finally thcre is no regulation on the sharing of rights. This hypothesis could

happen if nationals of several countries makc an invention. For cxample, an Amencan

and a Japanesc making an important discovery in the Russian module. A national

involved in a joint prognm will mcet the same problem. As it is impossible to clabonte

uniform system of sharing o f rights. solutions will have to be determined on a case by

case basis. Evcn though, an a prion agreement will have to be creatcd. common basic

rules could be elaborated as a first step.

As a result, mmy questions still nced to retain the attention o f the Panners sincc

the legal aspects of intcllectual propcny are not complctely resolvcd. This work

constitutes howcver a great challenge and will probably contribute IO amclionte every

national law systems in Europc.

 3. IGA a n d Datn Protection, Article 19:
a Considenng the design und the goal of the international spacc station, the dificulties

which might a i s e bccause of the protection ofconfidentiality may bc illustnted by M. R.

F. Kcmprs comment: "The closencss or commonality of the structunng of spacc station

clemcnts or modules, the complex logistics ncedcd to suppon activities in outcr spacc.

and the divenity of interests of the involvcd participants, are going to mdce the

confidcntiality requiremcnts ncedcd for trade secret protection much more difficult and

sensitive from an administntive und managenient v i ~ w ~ o i n t . " " ~

3.1 Gcneral Mechnnism:

Like aniclc 21, article 19 is formulaicd in general terms. Conscqucntly, the

provisions dealing with its pnctical implementation arc of g c a t importance; "Except as

othcnvisc providcd in this paragnph. cach Partner, acting through ifs Coopenting

Agcncy shall tnnsfcr al1 tcchnical data and goods considcred to bc neccssary (by both

panics to any transfer) to fulfill the rcsponsibilitics of that Panner's Coopcrating Agency

undcr the rclcvant MOUS and implcmcnting arrungcmcnts. Each P m y undendces to

handlc cxpeditiously nny requcst for technical data or goods prcscntcd by the Coopcnting

Agency of another Panncr for the purposcs of Spacc Station coopcntion." This obligation

is limited in ifs scopc.

Firstly. the tnnsfcr of data and goods arc the one "neccssary to fulfill the

responsibilitics of that Panncr's Coopcrating Agency" und secondly this tnnsfer is

limited to data und goods considered to bc neccssay to fulfill these rcsponsibilities.

Undcr this pnneiplc, Agcncics do not have any obligation 10 trnnsfcr thc data und goods

"'Spccch ai thc Intcm;rtionnlColloquium on C o m m n c ~ Usc

~ l of Spscc Sorions. Hmovn. G e m y . Jum
12-13. 1986.
 oftheir contnctors."' The transfer of data and goods by penons or entities other than the
a Partners or the Coopenting Agencies shall be supponed by the Partners, but will bc

covered by national laws and regulations."'

The third pangraph of article 19 establishes a distinction: Some data and goods shall

bc transferred with restrictions."' and the others, without rcstri~tions."~The Furnishing

Coopenting Agcncy shall mark with a notice the technical data and goods that arc to be

protectcd for expon control purposes,2" for p r o p n e t q ryghts"' and classified data and

soods."7 In these three hypothcses, the cooperating agency shall includc through the

notice or identification, the specific conditions regarding how these specific categorics

may be uscd by the rcceiving cooperating agency, its contractors or subc~ntractors."~

"Guidelincs for secunty of information" will also have to be establishcd by the Partners

through thcir Coopenting ~ g c n c ~ . " 'Consequently, this protection will have IO bc

implcmcnted in the national law o f the Partner Statc and it will be up to that Statc to

cnsure that the notice confoms with the IGA. This provision is reinforccd in the

provision on "Communications" in the Spacc Station."' It will b c neccssary to cnsurc

:"A. Famnd. "nic intcrnnrional spacc swtion projcci and the proieciion ofintcltccniat properiy righ." sec
supn. nole 27. nt 159.

:Il
In itiai case. the trinsfcr is rcstricicd by naiional laws and rcgulations.

:""Thc innsfcr of tcchnicat dam for itic purposcs ofdischarging thc Pamiers' rcsponsibiliiy with regard IO
intcrfacc. intcgniion and s~fciysliaII normally bc mdc without thc rcstriciions sci fonh in ihis pamgmph."
:"SCC
ICA Anicte 19 $3 (a).
:"Sec ICA Aniclc 19 $3 (b)
:"Scc ICA Aniclc 19 $3 (c).
'"Scc ICA Aniclc 19 $3. a. b. c.
:'' sec ICAAniclc 1988
 that every national law assures a safc proteciion through its own Communication Law. If
a this is not the case, specific provisions will bc implemented Io guarantec the respcct of

article 13 of the IGA. Herc again, WC might meei diffcrent level of protection.

Although the IGA was elaborated to have a common fnmework. an important part of

the rcgulation will take place at a national level.

3.2 Practicnl Conscquenccs:

Regarding thcse provisions. WC can make the same rcmark as WC did for anicle 21:

Although the IGA is a specific agreement that will govem chc Space Station, in many

cascs. it is up IO the Partncr State IO providc spccific Domcstic Iaw that will be consistent

with the IGA. In article 19, the enforcement and remcdics that have to bc implemented

will take place at a national level, assuring flexibility but also tequiring the same degrec

of protection as in the Domestic law of the Panncrs. Anicle 19 is very gencnl and as the

data and goods that will be tnnsferrcd may bc of high potcntial on a scicntific and

commercial point of view, it is nccessary IO maximize information security. Anicle 8.4 of

the Memorandum of Undcrstanding bcnvccn ESA and NASA provides that "in ordcr Io

protcct the intellcctual propcny of Spacc Station uscrs. proccdures covering al1 personnel,

including Space Station crcw, who have access to data are developcd by the Mulitlatenl

Coordination ~oard.""' Aniclc 12.1.k. of the samc MOU States that "Each Partner will

respect the proprictary riphts in. and confidcntiality of, appropriately marked data and

goods Io bc tnnsponcd on ils launch and rctum transponation system." The Multilateral

'" IGA Anicle 13. Communications: "Each Panncr shall rcspcct ihc pmpncwry righls in. und the
conlidcntiality of. the uiiliwtion &w parsing ihrough ils communication systcms. including ils gmund
nctwark and the communication sysamr of ils conmctors. whcn providing communication scrviccs to
nnothcr Panncr."

a ':'This Board is composcd of rcprcscnwtivcs of ihc Spacc Agcncics and is chaircd by a NASA
rcprcscnotivc.
 Coordination Board task is to "ensure coordination of the activities of the partnen related

to the opention and utilization of the Space ~tation."'~' The MOU providcs that decisions

of the MCB "should bc made by consensus."'"

When dealing with sensitive topics such as data confidentiality, WC can imagine that

consensus is hard to rcach. What type of provisions will have IO be introduced to assure

the security of the data tnnsfer? If we suppose that an expcrience has taken placc aboard

the spacc station by a Japanesc r e m in the US module. Once the Japancsc are back on

eanh, what c m be done to assurc the protcction oftheir data?

Finally, P m c r s will also have to take into consideration the question of conflict of

law if the protection of thc confidentiality is solved at a contractual level. The following

question tvould be: Could we adopt classical conflict of law mlcs, such a s a prior

agreement on the choice of fomm? The choice of one forum is not the solution adopted

by the dnfters of the ICA. In those conditions. under which law would the conflict of law

be solved? The case by case solution could be adoptcd: For cach contract dcalin with the

protcction of a specific right, a choicc o f one place of fomm could bc given.

Prior Io the analysis of thc implcmentation of these provisions in the Domcstic law of

the Pannem. we will briefly examine the last Iwo level of regulation.

":Aniclc 8.1.b. (Mnnngcmcnt nspec of ihc Space Sotion Prognm Primrily Rclntcd to Opentions and
Utilrwtion) o f the MOU.

"'An. 8.1.b. "Whcrc consensus cannot bc achicvcd on any spccific issuc within the p w i c w o f ihc MCB
a wiihin the iimc rcquircd. thc Chatmun is authonred io d e dccisions."
 Section 2. lntellectunl Property, Memornndn of Undentnnding nnd Implementing
0 Arrangements:

1. Memornndn of Understanding:

Memoranda of Understanding are at the second level of the Space Station's legal

framework. These international agreements "'constitute today the principal expression of

international cooperation in the space fie~d."'~' Usually. a MOU do not genente the same

rights and obligations as an international agreement. In the course of a symposium that

took place in May 1999, M. Andri F m d stressed that 'the memorandum of

understanding is considered to be a type of arrangement that registers a political nnd

monl commitment on the part of an international organization, a government, or a

constituent part of the latter, to conduct itself in a certain way. Because of their close link

with the IGA. it would appear that the Space Station MOUs will have acquired the status

on international agrccmcnt, as an exception to the general practice in this field."'"

Four MOUs have been elabontcd between the main space agencies."' For matters

of Intellectual Property, the MOU between ESA and NASA states that the IGA applies

:. G. hifcmndcric. "the United Staes Proposcd Patent in Space Legislation. an Inomational

18, Numbcn 1 6r 2. 1990). at 8.
I'cnpccrrvc."Journu/ofSp~~~~Lor~(vul

::'A. Fannd. "Lcgal cnvtronmcnt for cxplo~cation of thc Intcmational Space S o u o n (ISS)." 4' ISU
Srn~pos~um. ISS: Thr Nerr AbrAerplrrrr. 2 6 2 8 May 1999. Smsbourg. Fnncc, online
~http:l/ww.isunct.cddSymposiunul~omc.l~tml~

'" Scr thc Prcamblc of thc IGA: "Recognumg that NASA and CSA. NASA and ESA. NASA and thc
Govcrnmcnt o f Japan. and NASA and tbc Russian Spacc Agcncy (RSA) have prcparcd M e m o m & of
Undcrswnding m conjuncllon with t l ~ c ~Govcrnmcnls'
r ncgotialion of this Agrccmcnt. and that thc MOUs
provide dctailcd provisions in implcmcntatlon of this Agrccmcnt."
Scc also IGA aniclc 4.1: Thc Coopcntmg Agcncics shall implcmcnt Spacc Station Coopemlion in
nccordancc with Ihc relcvant provisions of this agrccmcnt. the rcspcctivc M c m o m h o f Undenwnding
(MOUs) bcwecn NASA and CSA. NASA and ESA. NASA and the Govcrnmcnt of Japm. and NASA and
USA concerning cwpentlon o n thc civil intcmntional Spacc Swt~on.m d nmngcmcnts bctwccn or among
NASA and thc othcr Coopenling Agcnclcs implcmcnting thc MOUs (implcmcnting a m g e m e m ) . Thc
 with respect to exchangc of data and goods and intellectual property"'. These bilaienl
a agreements contain more developmenls on the respective obligations of thc Panners, but

the specilic information which implies more details are enunciated in "implementing

arrangements."

2. lmplementiog Arrangements:

The implementing m g e m e n t s are considered Io be the third level of the ISS's

lcgal fnrnework. Thc MOUS shall be subject 10 the IGA and the Implcmcnling

Arnngcments shall be consistent with and subject to the ~ 0 ~ s .Because

~ ' ' of this link,

the United States will always have to be pan of these arrangements. Thcre has been. until

now, only one implementing mmgement bctween NASA and ESA regarding the shuttle

launch of Colombus orbital facility and its offset by ESA provision of goods and

s c n ~ i c ~ s . "More
~ arrangements will be established between in the future the Coopcrating

Agencies.

Future provision o n the allocation of risks, patent and data nghts and disputes

settlement, will bc determincd in "the Launch Services Agreement." Conccming

intellectual property, the parties have agreed that al1 data and inventions will bc kept

conlidcntial and no dissemination to third parties shall bc permitted without a specific

MOUS shall bc subjcct to ihis Agreement. and the Implcmcnttng amngcmcnts sholl be consistent with and
subjcct to thc MOUS.

::' Scc articlc 15 ofihis MOU.

The purpose of the Amgcmcnt is to esoblish. punuont to Aniclcs 6.3. 12.1 and 16.4 of thc MOU. and
consistent with the provisions of the 1988 MOU. ! c m and conditions for nn cquioblc bancr of ihc Shunle
a launch of ihc integmtcd COF. ss spccificd in Aniclc 2. h u g h provision by ESA of gwds and scrviccs. on
the basis or no exchangc of fun&. wilhi thc fmmework on ihc Intemtional Spacc Sotion P r o g m .
protection.'30 Furhcrmore, in the hypothcsis of an invention performcd in thc course of

this arrangement. Parties have agreed to report any inventions conceived or developed by

its employees or by employees of its convacton or subcontncton. The provisions

dcaling with intellectual propeny were an important concem for the drafters, and remain

a dcciding factor for the following steps.

The elaboration o f the legal framework of the Intemational Space Staiion is a

progressive process and provisions on intellectual propcrty and data protection will bc

implemented in the near future containing more detailed requiremeno. Sincc each

Domestic law may apply, its implcmentation is not an easy process.

2M Aniclc 6.1 IntcllccNal Propeny Righis. Amgemcni betwccn the NASA of the Unitcd Swtcs of
Amcrica and the ESA regarding shunle launch of Columbus orbiwl facility and iu ofisei by ESA provision
of gwds and services.
 CHAPTER 2. IMPLEMENTATION OF INTELLECTUAL PROPERTY

PROVISIONS IN DOMESTIC LAW

The IGA will enter in10 force as soon as the las1 instrument o f ntification.

acceptancc, or approval of Japan. Russia and hc United States has bcen deposited,"' the

Depositary State bcing the Government of the US."' Ratification of the 1988 IGA had

already stancd. but with the new IGA. a new proccdurc has to takc place. Japan and

United States have ratified the IGA on the 9th of November 1998; but Russia did not.

Once the Duma will have made a decision and the Russian ratification will bc effective.

IGA will enter into force. In Canada. the procedure should b c completcd by the end of

J m u q 2000. as required by thc international comrnitments.

The analysis of the implerncntation o f the IGA in Europe will be scen separately, as il

involvcs specific conscquenccs for a legal point of view.

Section 1. T h e Individual Partner States:

As cxplained in the first chapte?", the Partncrs chose Io cxtend their Domesiic

Iaw to the flight elcment providcd by them bccause each of them rciains jurisdiction and

conirol over if. Conscqucntly, pnor to the ntification, the participaling States in the IGA

will have to make sure thcir legislafion is not in contradiction with the international

agreement.

:"IGA Article 25.3(n)

"21GA Aniclc 25.2

 1. Canada:
0 In Canada. no specific law to implement a Treaty is required. However. following

a parliamentary tradition, Canadian laws have to be modified to permit the application of

thc international provisions. As a consequence, the Canadian House of Commons has

elaborated an Act to implcment the IGA, whose first reading took place in the 1 5 ' ~o f

October 1999.23'

The Canadian Space Agency is in charge of the design, manufacture and operation

of a robotics system, the Mobile Servicing System. This participation in the International

Space Station is of particular irnponance because, what is commonly called the

"Canadian Arm" will be useful during the first steps of the Station assembly, a s well as in

the course of its utilization. Thc main contractor is MacDonald Dettwiler and Associates

Ltd. The CSA has to ensure that this project will generate benefits for Canada. That is

why the CSA will be able to own all the intellectual Propeny realized in the cxccution o f

the contracts. "CSA was successful in obtaining a derogation to the new Government's

POI~CJ" on ownership of intellectual property.236~ o n s e ~ u e n t itl ~is. the CSA that is

licensing the contractors. In order to coordinate this function, an Intellecfual Property

Management and Commercialization Committee has been created within the CSA."' We

should keep in mind that the Partncrs did not always accept the principles on which the

Scc wpm. Chaptcr I

:Y Thc Housc o r Commons of Canada. Bill C 4 : "An Act to implcmcnt thc Agrccmcnt among the
Gorcrnmcnt of Canada. Govcmmcnts of Mcmbcr Swtcs of thc ~ u r n ~ c ;Space
n ~ g c n c j thc
. ~ o v c m m ~onf t
Japan. lhe Govcmmcnt o f the Russian Fcdcniion, and thc Govcmmcnt o f thc Unitcd Swtcs of Amcricn
conccming Coopcntlon o n thc Civil lnlcmationnl Space Slation and to m k c related amcndmcnts to olhcr
Acts."
:J>
Septcmbcr 19. 1991. Policy on o\rtnenh~pof ~ntcllcctualpropcny arising from Govcmmcnts contracts
inrolvmng rcscarch and Dcuclopmcnt (R 6;D). Scc s u p n , notc 27.

"R Lcfcb\~c."Canadnn Pcrspcctlvc and Potnt of Vtcw. Canadlan Laws". scc s u p n note 27.
:JI
ofCSA's IP lbrk
Its first m n & l c was to prepare a CSA pollcy swtcmcnt o n lhc commcrc~allwl~on
 IGA is bacd as such. The question of the extra-tcmtoriality of the law was a source of
a disagrecment bctwecn Canada and United States. as ihe Canadian govemment did not

sharc this artificial extension of national law ihat was cncounged by the US govemment

in specific cases of intemational law."'

2. Jnpan:

Japan ntified the IGA on the 9lh of Novembcr, 1998. h i s partner will furnish the

Japancse Expcrimental Modulc (JEM), the JEM Exposed facility, the JEM Remote

Manipulator System, the JEM Experimcnt Logistics Module and the Centrifuge

Accommodations ~odule."' Like for most of the Partncrs. the Domestic law o f Japan

docs noi apply to outcr space, exccpt in the International Space Station. Ncvenheless. in

Japan, the IGA is self-cxccuting. For mattcrs of intellectual propeny, NASDA shall bc

transferrcd an ownership of an industrial propcny nght from the contractor, making the

contractor disclose al1 technical information derivcd under contract IO NASDA. In the

utilization of the spacc station, following this standard of contract, such a disclosure does

noi Suatantcc any confidcntiality for the contractor. Here again, the question of

confidentiality of data will be vcry rclevant. Finally, to co-opentc with a private entity.

NASDA usc its national policy and joint rcscarch g~idclincs."'~

III
Sec A. Fannd. "The legal rcgimc applicable IO the spacc station coopcmtion: A Canadian perspcctivc.
Annuls ofAir andSpacc Lar: 1992 Pan 1. vol. XVII. ni 298-299.

:'"The JEM will uitluc the space cnwronmcni for m y applications in varicd fields such as micrc-gnvity
scicncc. biologicnl scicncr. space science and asuonomy. Earih scirncc and Eanh obscrvaiion. Sec M.
Matsuban. "Japnnese Experimcnt Modulc (JEM) and i Uiilizttion Plan." (Spacc Engineering Dcpamncni

a SNdent Eaculty Workshop, Intcmtioml Spacc University Summcr Sasion Program, S u m e c University
ofTechnology. Nakhon Ratchasim. Thailand. Auysi5. 1999) [unpublishcd].
3. Russia:

This Pariner still did not ntify the IGA. Howevcr, WC will sec that the Domestic Law

has taken space law into account. The Russian Law on Spacc Activity of 1993 contains

some provisions on Patent Law. As secn above."' only a broad intcrprctation of this

National law would lead to considcr this legislation applicable in outer space. As a

consequence. Domestic law should be created. However. if we consider the question of

propeny rights protection, anicle 16g4"" of the Russian law could be a basis on which

funher agreements may be adopied. The content of funher contracts bctween the Russian

Space Agency and its contractors and subcontractors could include additional provisions

that would assure them the confidentiality and protection of their data.

4. United States:

The DnRers of the Intcrgovcmmental Agreement decidcd Io creatc an "Executive

Agreement" instead of a Treaty since this type of agreement do not necd IO bc ratified by

the ~enate?" Howcvcr. the ICA gencrates the samc rights and obligations as any other

international agrecmcnt. and the Panncrs have to depose instmments of r a t i f i c a ~ i o n ? ~

Although the spacc station is an international program. the US Pariner remains the

leader of this projcct and furnishcs the major flight elemcnt of the space inh;istmcture. As

a consequcncc. the US law is vcry rclcvant. The introduction of the US Space Bill dunng

240
For cg. hc royalty incomc arc shnrcd nmong ihc omcrs according to thcir sharc and nll tcchnical
inromution ncccssary to implcmcnt joini rcscnrch arc mnsfcrrcd to cnch othcr on a royalty frce bac.
2.1
Sec supra. norc 35.
24:
Aniclc 1694: "Thc propcny rights ovcr thc information product crcated as a rcsult of spacc nctivity shall
bclong to ihc orgnniwtions and citizcns. tlwt have crcaicd such information. pmduct. unlcss othcmire
spccificd by rclevnnt agrccmcn."
IGA ncgotiations was a mattcr of grcat conccrn to the othcr Panners. In 1990, article 35

USC 105 is added to US Patcnt ~aw.'"

This tcxt was the sourcc o f important discussions that may bc s u m m ~ z c as

d follows:

The US Spacc Bill was IO cxtcnd the US Patcnt Laws to inventions made. uscd. or sold in

outer spacc on a spacc objcct, or cornponcnu thcrcof undcr the "jurisdiction or control of

thc United States," modifying. by a Domestic law, thc concept ofjurisdiction and control,

pillar of spacc law. The dcbatc that look place prior to and aRcr the adoption of this

provision niscd sevcral lcgal difficultics: The use of 'Surisdiction or control" instcad of

"and control" might enter into conflict with the IGA, intcrnational agrccmcnt to which the

US had become Party. Thc cxprcssion '~urisdictionand control" mentioncd undcr anicle

5 o f the IGA is the rcsult of a long proccss approved in the course of the claboration of

the IGA and whosc implications arc of high imponancc.'J6 Although flight clcmcnts

would bc rcgistcred in a non-US country, US Patcnt law would bc applicable to the Space

Station on the basis of the US conirol. Sincc thc control would bc sufficicnt for the US to

apply ils law, the scopc of the Domcstic law would not only convavcnc the intcrnational

agrccmcnt, but also bc have a broadcr application.'47

Thcsc discussions Icd the US to propose a ncw draft to rncct Europcan ~oncerns."~

This cpisodc strcsscs thc diflicultics that the Partncrs cxpcricnccd in ordcr to rcach a

2.4
A. Farand. "The Spacc Station Coopcntron." ESA Bullcrin. No 94. May 1998.
:<s Sec supm. note 16.

"'Sec supra Pan II. Chapter 1. Section 1.

247
"ln a lcncr Io the US Swtc Dcpamnent &tcd 6 March 1989, Uic ESA Dircctor Gcncml addrcssed thcsc
concems. He notcd that an mscnion bascd on the sole technical conml (irnplicd by the use of ""or
control"" would bc inconsistent with the lcncr and spirit of article 21 of the IGA." Scc G. hicmuidcrie.
the United States proposed paient in spacc legislaiion. an intcmationnl perspcctivc." Journal oJSpacc Law
(vol 18. Numbers 1 6:2. 1990). at 5.
 consensus on anicle 2 1. The wording of a lcgal tex<is, as shown here, extremcly delicate.
a WC c m imagine that in the adoption of more spccific provisions (in the future

irnplementing arrangements), as the commercialization o f the space station bccomcs a

reality. debates will becomc more complicated. A second problem concerns the

establishment of the date of i n v ~ n t i o n . ~as

' ~ the US law is based on a first-IO-invent

syslem. Precautionary measures werc proposcd, such as a systern of rcporls 10 a US

location, either on E m h or on a US flight elcment. h i s process, round to be useful in a

trial case. would ensure proof of the creation of the invention in the United tat tes."^
However, since the United States seem to be in the way IO modify their systern to a first-

IO-fileprinciple, these considenlions may loose their significance in the future.

Section 2. The Specificiy of the European Pnrtner States:

On the European sidc. involving clcven ~i~niitories,"~

the IGA will enter in10

force for thc European Pariner (the member States that will have ntified by lhat tirne)

when the instmrnents of ratification of at l e s t four European States will have been

received by the Dcpository. Following IGA anicle 25.3 (b) "a formal notification by the

24"
For a more dciailcd cxplanai~on of the dcbaic bciwccn ihc US govcrnmcni and ESA. sec G.
Lsffcrnndcric, Ibid.

'" Aniclc 35 USC IM swtcs as follous .'ln procccdings in ihc Patcnt Ofice and in thc couns. an applicnni
Cor a paicni. or a pnienicc. MY no1 cswblish a h i c of invcniion by rcfcrencc IO knowlcdgc or usc ihcrcof.
or oihcr aciivity with rcrpcci thcrcio. in a forcign counuy. c x c e p i v providcd in scctio& 119 and 365 of
this iiilc".

:% J. W. Goans. C. V. Hom. R. Bnrmlcy. "Consequcnccs of 35 USC IO4 on non-US night clcmcn of ihc

a proposcd spricc station."

A' Belgiuni. Dcnmrk. Fmncc. G c m n y . Iwly. Ncihcrlnnds. Nomay. Spain. Swedcn. Swiacrlmd. and ihc
UK.
 Chairman of the ESA Council" has been given. In December 1997, it has been decided by
a the ESA Council that this notification would not be sent pnor to the ratification by the

threc main European Member States ratification: Gcrmany, France and Italy. We will sec

that the implementation o f the ICA is far from satisfactory. Not only has the ICA not

bcen ratified by the four States as required, but therc is also no provision in European

Domcstic law ihat ensure the protection o f intellcctual property in outer space.

1. Situations of the Europenn Member States:

To implcment the ICA and assure ai the same time cohesion bctween European

Pannen, harmonization o f the law is a major stake for Europe. Although merging the law

is neccssary. it will not solvc al1 problems. Japan, the United States. Russia and Canada

also have their own provisions on intellcctual propeny which may enter into conflict with

Europcan legislation and IGA. The procedure of ratification differs from one country to

anothcr in ordcr IO integraie an international obligation in interna1 law. The question of

the implementation o f the ICA in national law was dcbated dunng workshops involving

Intellcctual Propcrty expens: Lawycrs, professon. and personnel of the industry. of the

space agencics and Patent ~fficcs.'~' IGA will be directly applicable in some countnes,

unlikc others which will have IO go through a legislative process. For the moment.

Nonvay is the only Europcan country that has ratified the IGA. Gemany enacted

lcgislation in 1991 after having incovonted the text of the 1988 IGA. If a Geman

provision contradicts or creatcs a conflict with the ICA, this provision will not apply. The

G e m a n govemment amended the 1988 ratification law in ordcr to make the 1998

"'Scc Rcvicw of lhc Answr 10 the Qucstionnairc sent to Ihc Europcnn lndusrry by thc Europem Ccnvc
for Spacc Law. scc supm. note 1 13. 1 18-137.
 ratification possible. "Any activity occumng in or on the ESA registered element is-for
a the purpose of the protection of industrial property rights and copyrights-deemed to have

occurred in ~ e r m m ~ . " ' "In this case. if therc is an infringement. prosecution will be

brought about in Germany. Nevenheless, except for the IGA, the Domcstic law does not

cxtend to outer space.

Most o f the European countries did not elaboratc specific provisions to implemcnt

the IGA. For example, although the UK deposited its instruments of ratification, it did not

modify its national law. The UK applicable law to patent is limited Io the tcmtory. In

principle. the UK jurisdiction does not extend to spacecrafi. Nevertheless, there is no

provision that prevents an invention made in outer spacc IO be patented in the United

Kingdom. The IGA will improve this country patent system. but as it does not cxtend to

outer space, the question of enforcemcnt of the law remains. h c temtorial application of

patent law will also not help the rcsolution of infnngement issues. In most of the

Europcan countries: Belgium Denmark. Fnnce, Germany, the Netherlands, Sweden and

Italy. no mattcr wherc that invention was made, the Domestic law o f Patent will apply to

an invention created in Outcr Space. As the exclusive rights will reccivc a protection only

within the boundaries of the country, legal uncenainty remains in the case of

infringement. Hcre again. the ratification will not ensure the protection of future

inventions in the spacc station. Ncvcnhcless. with a broad interpretation of the temponry

presence doctrine in Swedcn and Netherlands' laws, the use of a patentcd invention (in the

respective S i a m ) will not constitute an infringement. Article 21 of the IGA gives the

main principles dealing with intcllectual property.

a '"Scc rcsponse of the G c m n Minisuy of Justicc. Ib~d,nt 121.

 Howcvcr. many problcms havc not bccn ~ o l v c d In
. ~ ~respect 10 Europcan
0 Mcmbcr States, the main issue is the possibility to go to a court in thc case of

infringcmcnt. At this stage of the Europcan lcgislation. a patent c m bc grantcd for an

invention in outcr spacc. In the absence of enforcement of this provision. the protection is

not cffcctive. This point has Icss to d o with the Statc of jurisdiction than the fact that

spacc industry wmts to cany out space activitics safcly. Thc lcgitimacy of article 21 will

dcpcnd on ils availability Io mswcr Io practical situations that will arisc, as lhc

Intcrnational Spacc Station will bccomc a rcality.

The 1 s t aspect of this discussion is rclatcd to the fiction clabontcd for Europc in

the Intergovemmcntal Agreement. As only a fcw countrics havc ntificd the IGA in

Europc. the opponunity should bc taken Io cncoungc a uniform way of ntifying. The

solution adoptcd by Gcmany is inte;csting. becausc it offcrs the possibility to go to a

Gctman Coun if ncccssary. assuring an cffcctivc lcgal protection.

2. The "Europcan Pnrtner," nn lnnovntivc Notion in lntcrnationnl Lnw:

The Europcan Mcmbcr Statcs arc composcd of clcvcn cntitics which, in the

Intcrnational Spacc Station Agreement. are rcprcscntcd only by one Panncr. Somc are

ESA membcrs but not EU mcmbcr~.'~'

2.1 I C A a n d thc Europcnn Pnrtner Legnl Fiction:

The concept of Europcan Panner ha a dccp impact whcn rclatcd to spccific

provisions of the lntcrgovcnuncntal Agreement. This notion appcars at diffcrcnt places in

thc IGA. among othcrs: The Europcnn Pnrincr hns dclcgatcd to ESA, acting in ils namc

254
Sec s u p n Pmcticd conscquenccs enhanecd by miclc 21.
 and on its bchalf, the rcsponsibility to rcgistcr as spacc objccts the flight clcmcnts."* this
a Partncr shall entrust ESA, acting in ils namc and on its bchalc wiih owncrship ovcr the

clemcnts il provid~s,'~'through ESA, hc shall bc rcsponsiblc for managcmcnt of its own

p r ~ g m m , ' ~the
~ Partners. as wcll as ESA, shall rcmain liablc in accordancc with the

liability ~onvcntion.'~'As sccn abovc the Europcan Mcmbcr Statcs arc considcrcd as one

singlc Statc for the application of article 21. The notion of European Partncr is also

strcsscd in Art. 1967 whcrc "any transfcr of technical data and goods by a Coopcnting

Agcncy to ESA shall bc dccmcd Io bc dcstincd Io ESA. IO al1 the Europcan Panncr Statcs.

and to ESA's dcsignatcd Space Station conmctors and subcontnctors." Thc goal hcrc is

to also considcr Europcan Mcmbcr Statcs as a single cntity. Evcry lime nghts and

obligations arc providcd to a Partncr in the Agrccmcnt. it is dccmcd to be accordcd to the

Europcan Partncr, takcn as a wholc. and rcprcsentcd by ESA.

2.2 Justification of the Fiction:

This ficiion could bc intrrprcicd as a way Io incrcasc two levcls of coopcntion.

Europcan and Iniemational. Europe is bccoming morc and morc involvcd in space

pmjccts. whcrc ESA is the rcprcscniativc o f the Europcan Mcmbcr Statcs. The wcighi of

countries is hcavicr whcn thcy arc involvcd togcthcr in ncgotiaiions and furthcrmorc, it is

dcsinblc 10 have scvenl panncrs in the spacc program. as the cos1 is oficn important.

Aniclc II ESA Convention dcfincs the purposc o f ESA as 10 "provide and promotc, for

cxclusively pcaccful purposcs. coopcniion among European Staics in spacc rescarch and

:3>
Swiucrland and Nomay.

:"IGA Aniclc 5. Rcgismiion; Junsdiciion and Conuol.

"'IGA Anicle 6. Omcrship of Elcmen and Equipmcni
'"IGA Aniclc 7.Managcmcni
 tcchnology and spacc applications, wih a view to their being used for scientific purposes
a and for opcrational spacc applications sy~tcrns.~"~ l t h o u g hconsensus is vcry hard to

rcach bctwccn European Member States, evcry tirne a decision has Io bc taken, the facl

that Europc is reprcscnicd by one P m c r will oblige thern Io have a cornmon policy.

Thc IGA will aim at increasing the international cooperation behvcen spacc

agencics. "This is donc not only to permit the sharing of the significant costs involvcd in

large prograrns. but also to takc advantagc of existing know-how and facilities. including

launching capabilitics. that could bc provided by one ~artner.""'

2.3 Coosequence of the Qualification:

At European law levcl, with the legal fiction elaborated in ariiclc 21, panicipating

States will have the choice of the law that will apply in thc case of an invention in thc

spacc station. As a conscqucncc of the applicability of differcnt Intellcctual Propcny law

by cach European Mcmbcr Siare, althouh Europc is considcrcd as a unique Parlner,

European judges rnight bc confrontcd with conflicts of law. TV avoid such a problem and
limit the difficultics enhanccd by this multi-tcmtonal appmach, cornrnon solutions should

bc adoptcd at a national ~evel."' The hmonization of Europcan lntcllectual Propeny law

shall cnsurc the samc lcvcl of protection among the European Mcrnbcr States. Although

rnuch work rernains 10 bc done. to providc detailcd provisions for IGA's application

IGA Aniclc 17. Liability Convention

:ta
Rcferencc ESA Convciion. online: EU Trcaty. onlinc at chttp://www.curopa.in~cur-
lc.~e/en/trcatics/indcx.hml>

:"A. Fannd. Lcpnl Aspecls of hc International Spncc Swtion and Oher Facilitics for Microgi-ivity
a Rcscnrch. sec supm note 110. at 58.
'"Sec Supn Panl. Chpter III.
(implementing arrangements, Code of Conduct, conmcts). this is a challenge for Europe

that could be useful for future international projects.

h i s fiction is also of specific inierest from an international point of view. Like

individual6 in Domestic law, States are nonnal subjeco of international law. The most

important part of space law includes the "attribution. regulation of the competcnce of

States in their rnutual re~ations.'~'

When a State takcs part in space activities. it does so as a sovereign State. "Space

aciivity is thc object of legal relations which emcrge betwcen the subjects of international

law on the basis of the n o m s of space law, i.e. space activity causes States to enter into

legal re~ations.'~Usually, these legal relations emerge between States as a single cntity.

It is more in the private practice area that projects involvc companies whose nationality is

differcnt, as in the case ofjoint vcnturc.

In thc Intcrgovcmmental Agreement. Panners look likc a multinational public

Company. cxcept that it is lcd by public entities, rather than by companies. A

muliinational venture is becomin a rcality with the commercialization of this

International Space Station.

As a conscquence, even if each State remains sovereign. undcr the leadership of

the Europcan Space Agency, a common spirit will animatc the European Membcr States.

26,
B. Cheng. sec supn. noie 1 4 . 0 .
'"E. Konsoniinov. "Space Lu. as a Bmnch of Intcmrioml Law." in Pmceedings of ihc Colloquium on
Ihc bi~~ofoulcrspoccIISL. Amencan ImIiNic of Acmnauiics and Astroiviutics. 1992. nt 383.
 CONCLUSION
a
Spacc continues to offer short-term and long-tcrm investon tremendous

opponunities. Fintly through increases in satellite tnffic h m the Internet, new data and

vidco applications. secondly through continucd growh forccast for remote-sensing, GPS

applications and the manufacturing of ground equipment. and finally a combination of

stable revenues from the manufacturing and launch of satellites and from govemment

R&D con tract^.^^^

As a consequence. ihc role of lntellectual Propeny in outer spacc shall not bc

neglcctcd. 11 has bcen. and is still sometimes considcred that lntellectual Propeny

questions should bc treated as any othcr Intcllectual Propeny matter sincc a patent can

receive protection on Eanh. However. outer space has a special statutc undcr international

Iaw which has Io be respected, whatevcr the lcvel of involvement o f the private sector

will become.

Harmonization of the law of Intellcctual Propeny should bc a major topic whose

elabontion should s t m as quickly as possible. As a first stcp, this evolution could take

place ai a rcgional lcvel. in ordcr to conccntrate the rules of law that are applicable: in

Europe (the European Community Patent could be a good start), in the East-European

couniries. in Asia. Nonh Amcnca and South Arnerica. The second step would be the

:es
Sec supra. noie 20. ai 6.
creation of a world patent system. where the space patcnt would be a pan o f it. This

evolutionary law-making process will have to be made in the respect o f the spacc law

principles established in the five space treaties, and especially the Outer Spacc trcaty.

This obligation is expressly mentioned in the preamble of the Intergovernmental

Agreement. Allhough the IGA codifies principles on Intellectual Propeny and Exchange

of data and Goods, we have seen that implementation niles are required.

In the course of a colloquium held in May 1999. N. ~asentuliyana,~~'

did a

presentation on thc rolc of the United Nations in strengthening international space law.

"Matters such as international commercialization launching services and the liability

aspects thereof as well as intellectual property rights. insurance. the growing interest in

spacc tourism and the mining of asteroids are only a Cew of the new legal issues requiring

examination."'"' Such a progress. through the United Nations and the World Intcllectual

Properry Organization, would contribute without any doubt. Io simplify the niles of law,

limit the conflicts of law. as well as enhancc the international cooperation.

:- Deputy io the Dirccior-Gcncnl, United Nations Onicc ai V i e m : and Direcior. Onicc for Ouicr Spacc
Affam
267
N. Jnscnniliyaiw. "Strengthcning Inicmaiioml Spacc Lnw. the Rolc of ihe Unitcd Nations. sec supra.
noie S.
 BIBLIOCRAPHY
a
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Dl CASES

Huches AircraR Co v. United States. 29 Fed. CI. 197 (19931

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El PERIODICALS AND REPORTS

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Proceedings of the Fint ECSUSpanish Centre for Space Law, Workshop on Intellectual
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FI OTHER SELECTED DOCUMENTS:
Newspo~cn:
Aviation Werk and Space Technology (20 May 1996.9 August 1999.23 August 1999).

Harvard Business Revicw (Sept-Oct 1997).

Harvard International Law Journal (1968).

international Revicw of Indusirial Property and Copyight Law (Vol. 29. No. 8, 1998).

Journal of Space Law (Vol. 13, No 1, 1985).

Journal o f the Patent and Tndernark O f i c e Society (June and August 1998).

Satellite News (May and June 1996)

Spacc News. No22 (June 17. 1998)

Zeitschrin fur Lun und Weltraumrccht (ZLW).German Journal of Air and Space Law,
(1998).

-
Weh:
Honlepnge:
Thc World Intelleciual Propcny Orguization chttp:l/wivw.wino.or~'Iene/main~htn~>
The International Space Univcrsity <http://www.isunet.edu>
The United Nations Cornmittee on Peaceful Uses of Outer Space
chttp:liwww.un.or.at/OOSA>
The European Union Homepage <hti~:Il\~\iv.eu.euronea.int>
 Articles
e NASA O f i c c o f thc Gcneral Counscl. cxccutivc summary on "Intcllectual Properry and
the International Spacc Station: Crcation. Usc, Transfcr, and Ownership and Protection"
<http:llwww.hq.nasa.govlogc/iss/e~ec~summary.html>

M. Uhran, "Commercial Dcvclopmcnt of thc International Space Station", onlinc:

Intcrnational Spacc University Homepagc
< h t t p : / / w w w . i s u n c t . e d u / S p p o s i u m ~ S y m p o i

A. F m n d , "Lcgal cnvironmcnt for exploitation of the Intcrnational Spacc Station (ISS),

Intcrnational Spacc Univcrsity Homcpagc
<Iittn:llww~v.isiinct.cdu/S~~mposiumhomc.html~

M. Haningron, "Protcin Crystallography Services on the Intcrnational Spacc Station."

~http://ww\v.isunct.cdu/Spposium~symposium99/Oral%2OAbstract~~ngton.html~

"Draft patent law finalizcd for the Diplornatic Confcrcncc." Gcncva. Scptcmbcr 15. 1999.
~http://~nvw.wipo.org/cng/prcssupd~1999/upd99-70.htm~

Thc United Nations Committcc on Pcaccful Uses 01Outcr Spacc, UNISPACE II1 Rcpon,
onlinc <http://w\wr.tin.or.al/OOSA
lunisp-3/docsldocs.htm>

EU Trcaty. onlinc at <http://ww.curopa.int/eur-lc~Ien~trcatics/indcx.html~