The space sector has experienced a significant boom over the last 10 years. The estimated worth of the space economy, by 2036, is projected at £400 billion. A large portion of the current boost has come from private investment into space enterprises, as seen with Elon Musk and the founding of Space X, thereby commercialising the sector. This is a huge advantage for many of the engineers and creators of space IP who are looking to exploit their IP.

As such, those involved in the industry ought to protect any relevant IP they create or develop within the sector. As one might expect, space-related inventions can benefit from the same protections afforded to the following intellectual property rights:

Patent Rights 

This legal right allows the original invention to be protected to prevent others from replicating, using or selling that invention. In 2005, there were only 300 space-related patent applications. By contrast, in 2017, space-related patent applications increased to 2,500, exemplifying the start of what is known to be the commercial ‘space race’.

Unlike the 20th century space race between the US and the Soviets, the winner of this contest may be measured by which company holds the most patents. We therefore expect to see a greater number of space related patent applications filed in the coming years.

Trade Marks 

Inventors can trade mark the names of their creations and related logos. The USPTO (the US counterpart to the UKIPO) has so far received 6,000 space-related applications.

NASA is the best example for demonstrating how logos can be used for commercial benefit. It has two logos, commonly referred to as ‘Meatball’ and the ‘Worm’, which benefit, for example, from statutory protection in the USA. These two popular marks have been used and applied to merchandise such as t-shirts, hats, travel bottles and other fashion items across the globe. There have, however, been instances where ‘side hustle’ infringers have attempted to apply NASA marks to faux products. These have invariably been met with opposition by NASA and, more often than not, the infringers back down, leaving no case to answer.

Going forward, there is much to be settled in relation to the registration and enforceability of space-related trade marks in space and on earth. There is speculation that the World Intellectual Property Organisation (WIPO) could play a larger role in the administration of space marks down the line. We will be able to comment on this point further in due course.

Trade Secrets

Trade secrets play a significant role in the protection of key advancements and confidential business information within this sector. However, whilst trade secrets can be a business’s greatest asset, they can also be its greatest risk.

For instance, in the case of OHB vs Commission T-54/21R (available here), OHB, a German satellite company, complained to the European Space Agency (EUSA) that a competitor had benefitted from confidential information and know-how belonging to OHB, which had been reportedly leaked during a tendering process. The risk here lay in the fact that the expert(s) used to evaluate the appeal and commercial attractiveness for one tender was asked to evaluate each company submitting a bid. In this case, OHB alleged that the expert it had used subsequently disclosed (whether directly or indirectly) their trade secrets and confidential information to the applicant who won the contract.

Many companies require their staff/contractors/agents to enter into restrictive covenants or “non-competes” to increase the protection of know-how. However, in practice, the ability to enforce these provisions consistently remains difficult.

Jurisdiction

Taking the above intellectual property rights into consideration, those rights created or used in the realms of space beg the question as to the jurisdiction that ought to apply to their registration and enforceability. Can we apply national and regional intellectual property rights law in space for inventions made or used there?

Intellectual property rights are subject to the notion of territoriality. By contrast, and according to international space law and the International Space Station, jurisdiction and control is retained by the State in which the space object is registered.

This concept is illustrated by the example of Chris Hadfield in 2012, touching on copyright issues in space where an astronaut played Bowie’s Space Oddity on YouTube. As the infringement occurred in the Canadian pod of the International Space Station, Canadian law applied in this matter. The theory here was not really tested as the performer had received permission from the artists, therefore there was no infringement.

Could we infer, then, that the territorial jurisdiction of intellectual property laws allows the extension of national law to space objects that have been registered in a State and sent to space? Based on such reasoning, and according to several international agreements on shared space programmes, registered space objects are quasi-territory where intellectual property is engaged.

We will patiently and eagerly be waiting for the many unanswered questions to be unravelled as we navigate and complete a deeper exploration of space.

If you have any queries in relation to this article, please contact a member of our Space Sector team. 

This article was co-written by Arina Yazdi, Trainee Solicitor.