The commercialisation of space presents a fundamental shift in the access and use of space. The most exciting aspect of the commercialisation of space is that the reduced cost barrier to entry means weβre seeing new companies develop and taking a different view on how space activities should be performed and by whom. This new thinking will undoubtedly only foster new thoughts and developments on how space can and should be commercialised.
With any technological development, the underlying intellectual property (IP) must be protected for commercial viability. The space sector is no different. However, IP protection for space technology differs from βtraditionalβ technology, which makes the space sector unique.
Until now, IP has generally been generated within well-deο¬ned geographical limitations. As a result, it is usually clear which IP law prevails, how far the jurisdictional boundary extends, and how the IP is enforced.
For space technology, space law also needs to be considered. The founding principles of space law are that outer space and celestial bodies are free for exploration and use by all States in conformity with international law and not subject to national appropriation.
The space problem
Space law determines how activities in space are operated and the laws under which such activities are governed. However, space laws mean that the jurisdictional boundaries of IP laws become limited.
Contrary to common belief, jurisdictional laws on Earth do extend into space. However, their boundaries differ from those on Earth. Article VIII of the Outer Space Treaty and the 1975 Convention on the Registration of Objects Launched into Outer Space establish how a jurisdiction extends to an object in space. For example, the laws of Australia, including any IP laws, would govern an Australian-registered space object. Likewise, the laws of the United States, including any IP laws, would govern a US-registered space object.
However, the issue becomes this: what happens if my competitor copies my IP, operates in the same area as me, but registers their space object (which could include any technology) in a jurisdiction different from mine? In short, they can potentially evade whatever IP protection you may have on the space object.
For this reason, the protection of space technology cannot use the same strategies for Earth-bound technologies. For example, an IP protection strategy for protecting a component that is 3D printed in space for installation on a satellite in space is very different from how the manufacture, installation, and sale of a component for a car would be protected using IP.
The solution
It is critical first to understand the commercial context of the business and technology, then understand why IP protection is needed. The answer to these questions must look holistically at all intangible assets surrounding the technology and not be limited to traditional IP protection strategies such as patents. It is surprising how intangible assets are often glossed over, discounted, or even forgotten, yet they often are the key assets generating value and linking surrounding assets together. It is also not uncommon for companies to gain a greater insight into their commercial strategy once they understand their intangible assets and how they add value. After all, the development and implementation of technology require many inputs and output, and IP protection regimes such as patents can only be used to protect a few of them. As an example, an R&D structure that allows a company to develop technology faster than their competitors may have greater value than a patent on technology developed by the R&D.
Patents are generally the go-to when looking to protect an invention. However, they only protect some intangible assets, not all, and their use to protect activities in space has limitations. Accordingly, trade secrets and other forms of IP protection will become increasingly important, especially those not as limited by space law. Still, these different forms of IP protection also have their limitations, so it is vital to understand the pros and cons of each protection regime. For example, confidential information may be publicly disclosed β unintentionally or otherwise β during investigations into a launch failure or during regulatory approval. Understanding these risks is critical to ensure your commercial ambitions aren’t derailed.
The requirement to look holistically at intangible asset protection rather than just IP means it is important for companies to identify and protect their intangible assets early to reduce risk and maximise asset value. This is true for all sectors, but especially so for the space sector. Identifying and protecting intangible assets also shows a level of sophistication that can set you apart from your competitors.
Stefan Paterson
Stefan is a patent attorney with a speciality in the interaction of IP laws and space law for the protection of space-related technology and how existing IP protection strategies are often inadequate for space-related technology. This speciality gives Stefan an unparalleled insight into the need to look more holistically at intangible assets, rather than just at traditional and narrow IP protection, when looking to protect technology.
Stefan's technical experience sees him working in chemistry, biology, materials and engineering fields, allowing him to rapidly apply his skills across a wide variety of technical areas.
