Stephen Blake, Partner, and Isobel Ferguson, Trainee Patent Attorney, at Marks & Clerk, discuss some of the challenges posed with regard to IP when it comes to space applications.
Space might remain the final frontier, but with businesses and start-ups increasingly
recognising the commercial opportunities afforded by space and satellite technologies, it is
a frontier that many are increasingly willing to tackle. The recent news that human cartilage tissue was successfully 3D printed in space, whilst sounding like the stuff of sci-fi, is just another example of boundaries being pushed in this emerging market.
Beyond this however, such examples also raise important questions for innovators thinking
about space age technologies. In particular, who owns intellectual property in space, and
how can innovation be protected?
While space business might sound out of this world, getting the fundamentals for success in place remains key as in any other business. Central to innovative industries such as space-tech is intellectual property (IP). Companies at the forefront of exciting and emerging technologies invest heavily in research and development, and protecting this investment with IP is crucial.
As with any new technology, patents will be a major aspect of a space-tech start-up’s IP
strategy. Patents protect the core innovation that makes a business what it is and get to the nub of what makes a product unique. If, as may well be the case with space-tech businesses, an innovation is especially novel, well-drafted patents may also allow for the potential licensing of patented technology to third parties, driving significant income.
Trade marks, too, are important in helping a business define itself in the market and locking in the good will and recognition associated with a given brand.
Beyond these well-known forms of IP however, the kind of technology that may be
employed by space-tech start-ups, combined with the question of whether or not space is a
legal territory for IP rights, presents a unique set of challenges.
Technology wise, space-tech is pushing the boundaries of IP and the law needs to move
quickly to keep up. 3D printing, for example, is likely to have a key role to play as
commercial companies engage in the space race – as with the 3D printed cartilage. Why
incur the cost, risk, and complex logistics of transporting components to and from, for
example, the international space station by rocket, when components can be sent as a
digital file, to be downloaded and 3D printed?
However, what makes this technology exciting also makes it challenging from an IP
perspective. Would an existing patent covering a given tool or component also cover the
digital expression of that component, and how can counterfeiting be avoided when goods
can circumnavigate traditional boundaries such as borders and customs checks?
Similar questions arise with other emerging technologies like augmented and virtual reality
displays. As with 3D printing, the likelihood is that patents and trademarks drafted before
this technology was ubiquitous, will lack the provisions to protect IP when a product is
expressed digitally or in VR. The lesson for space-tech start-ups then is to work with your IP advisors to anticipate the challenges posed by exciting new technologies, and ensure your IP covers them.
IP in space
The question of whether or not IP even applies in space is another one that businesses in
this sector will need to consider. Intellectual property rights, such as patents, are limited by
territory – allowing a patent owner to prevent the manufacture, use, or sale of the invention covered by the patent in a particular territory (for example, a UK patent offers protection for manufacture and sale of the invention in the UK).
Outer space however, as with the high seas and Antarctica, is not the subject of national
appropriation – it doesn’t belong to any particular country. Patent law therefore becomes
murkier around the enforceability of a patent for an invention that is made, used, or sold in
outer space and the question arises – would a UK patent owner be able to prevent the
exploitation of an invention in outer space?
Until now, these questions have been largely hypothetical, but as space-tech becomes more prevalent, so too will the question of IP in space. The US is one of the few territories to modify its patent laws to address this question and US patent law specifies that an invention that is made, used, or sold in outer space on a space craft that is under the control of the USA is considered to be made, used or sold in USA territory (and, therefore, covered by a US patent).
This is certainly one response to this challenge though not a perfect one (how would
someone on Earth know if an invention covered by their patent was being infringed in outer
space, for example?), and no doubt as patent law plays catch up, the law in this area will
become more sophisticated.
For now, for those businesses boldly going where none have gone before, getting the right
IP advice will be crucial. Well drafted IP, aligned closely with wider business strategy, not
only protects the value inherent in an idea but provides a platform from which to launch a
Trainee Patent Attorney
Marks & Clerk