Academic journal article The University of Memphis Law Review

Pirate Battles in Outer Space: Preventing Patent Infringement on the 8th Sea

Academic journal article The University of Memphis Law Review

Pirate Battles in Outer Space: Preventing Patent Infringement on the 8th Sea

Article excerpt

I. Introduction 733

II. The Jurisdiction of Patent Law 737

A. Decca Limited v. United States 738

B. NTP, Inc. v. Research in Motion, Ltd 739

III. Maritime Law 740

IV. Outer Space Law 743

A. The Outer Space Treaty 744

B. The Registration Convention 745

C. The International Space Station 747

D. Patents in Space Act 748

V. Issues with Outer Space Patent Law : The Loophole 749

VI. Past Suggested Solutions 753

VII. The Beneficial Use Solution 757

VIII. Conclusion 759

I. Introduction

The news of the Challenger space shuttle explosion in 1986 shocked the nation.1 The catastrophe occurred just seventy-three seconds into the launch due to a faulty o-ring in the solid fuel rocket that led to a chain of failures ending with the mixing and ignition of liquid oxygen and liquid hydrogen fuel.2 The event was nationally televised, and millions of Americans helplessly watched the disaster as it unfolded. In the aftermath of the explosion, the Senate Committee on Commerce, Science, and Transportation ordered the Congressional Budget Office to perform a special study to determine the United States' future involvement in outer space.

Twenty-six years prior to the Challenger incident, when the United States Shuttle Program was first created, the United States' policy was that space travel would be conducted almost exclusively in the public sector through the National Aeronautics and Space Administration ("NASA").3 4 5 It was not until Congress enacted the Commercial Space Launch Act in 1984 that the private sector was allowed to launch spacecraft into outer space for the first time.6 In 1990, the Launch Services Purchase Act was passed into law, requiring NASA to outsource the launches of its primary payloads to commercial launch providers.7 By 2010, NASA extended its commercial launch preference to any "space goods, services, or activities," meaning that almost every launch beyond this point was to be contracted to the private sector.8

In the absence of a government space launch program, the commercial launch industry is a rapidly growing technological field valued at over $ 100 billion per year.9 As with all technological advances, companies want to ensure that their future invest ments are protected. Traditionally, inventors have used patents as a tool to obtain an exclusive right granted by a national government to exclude others from making, using, or selling an invention for a limited period of time.10 "Because patents are granted by national governments, they are inherently territorial and may only be enforced within the jurisdiction of the granting government."11 This means that while the holder of a United States patent would enjoy legal protection for her invention within the United States' territories, the inventor would also need to file for a patent in every 1 ? other country in which she wishes to receive protection. This jurisdictional issue presents many problems for protecting inventions that have wide, international markets. But what about inventions that have extraterrestrial markets? After all, no one has ju* * risdiction over outer space.

"For years, inventors have been filing and obtaining patents for technologies that have either exclusive applicability in outer space or dual-use applicability both on Earth and in outer space."14 But these inventions are only protected on Earth.15 In the beginning of commercial space flight, the technology and cost of entry for joining the commercial space launch industry was a barrier, which kept the number of companies in the field relatively small.16 As the industry grows, however, and more companies enter the market, "traditional terrestrial legal issues associated with intellectual property ('IP') law will find increasing applicability to such commercial outer space activities."17

To address this issue, Congress enacted the Patents in Space Act in 1998, giving the United States extraterritorial jurisdiction over "[a]ny invention made, used, or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States" subject to exceptions for compliance with international treaties. …

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