Non-Appropriation in Space: A Surprisingly Old Dilemma with Patent Law
A brief history on the need for patent reform as more nations and private entities enter space
By: Jessica Ramsey
On January 27, 2017, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the “Outer Space Treaty”) celebrated its fiftieth anniversary. Arguably the most important body of space law with 89 signatory states, it is both shocking and predictable that the Treaty has never been amended.
History explains. In October 1957, the U.S.S.R. successfully launched the first artificial satellite, Sputnik I, effectively initiating the Space Race. The following July, the United States founded the National Aeronautics and Space Administration (“NASA”). Less than a year later, the United Nations created the Committee on the Peaceful Uses of Outer Space (COPUOS).
In 1967, COPOUS created the Outer Space Treaty, which was signed by over 50 nations amid the Cold War and global fear of nuclear weapons positioned in space. The Treaty is seventeen Articles of broad, cautionary language, warding against extending the arms race beyond the atmosphere. Yet, because of its breadth, it has proven significantly more difficult to amend than to sign.
But here is where questions regarding patents in space likely began. Article II of the Outer Space Treaty explicitly states that space, including celestial bodies, “is not subject to national appropriation” by any means.
Put bluntly, this is the precise opposite objective of a patent. Patents are territorial rights and almost every country has its own patent laws. There are cooperative international systems like the Patent Cooperation Treaty (WIPO patents), but these still do not remove the territorial nature of patents.
Thus, the dilemma is revealed: patent law only provides protection in the territory of the country the patent is filed within. Even international patent laws require the territory be under control of a party state. If no one country can control any territory in space, how is the appropriate patent law in space determined?
In 2004, this question was considered in “Intellectual Property and Space Activities,” a WIPO issue paper. The document explains reconciling patent and space law is important mostly because space activities are becoming increasingly privatized. These non-governmental entities tend to be “more conscious of their ‘property,’” including intellectual property. This, paired with increasing international cooperation and immense private investments required in space activities, heightened the need for “simple, uniform and reliable” IP laws.
Yet, the Outer Space Treaty and both national and international IP laws remain largely unchanged. The only United States code specifically regarding IP in space was enacted in 1990 and merely overlaid current patent laws onto the territory of outer space. This rather cookie-cutter approach is not in alignment with the Outer Space Treaty’s stance on “no national appropriation” in space.
As of 2019, it has been 61 years since the first artificial satellite launched into space and 51 years since the signing of the Outer Space Treaty. COPUOS membership has risen from 18 to 92 member states. The Cold War has ended, the Internet was created, and the world has reached new heights of globalization.
Yet, the dilemma remains. The faster people enter space; the faster inventions will be produced as problems are experienced and subsequently solved through technology. The more technology created in space, the higher the need for uniform patent laws.
How will territorial patent laws and non-appropriative space law be reconciled?
 Jonathan Lim, The Future of the Outer Space Treaty – Peace and Security in the 21st Century, Global Politics Review 4, Oct. 2018, http://www.globalpoliticsreview.com/publications/2464-9929_v04_i02_p072.pdf (last visited Feb. 17, 2019).
 18 U.S.T. 2410.
 Steve Garber, Sputnik and The Dawn of the Space Age, NASA, Oct. 10, 2007, https://history.nasa.gov/sputnik/ (last visited Feb. 17, 2019).
 Steven J. Dick, The Birth of NASA, NASA, Mar. 28, 2008, https://www.nasa.gov/exploration/whyweexplore/Why_We_29.html (last visited Feb. 17, 2019).
 Committee on the Peaceful Uses of Outer Space, United Nations Office for Outer Space Affairs,
http://www.unoosa.org/oosa/en/ourwork/copuos/index.html (last visited Feb. 17, 2019).
 18 U.S.T. 2410.
 Protecting intellectual property rights (IPR) overseas, United States Patent and Trademark Office, Jul. 4, 2009, https://www.uspto.gov/patents-getting-started/international-protection/protecting-intellectual-property-rights-ipr (last visited Feb. 17, 2019).
 Inside WIPO: What is WIPO?, World Intellectual Property Organization, https://www.wipo.int/about-wipo/en/ (last visited Feb. 17, 2019)
 PCT FAQs: Protecting your Inventions Abroad: Frequently Asked Questions About the Patent Cooperation Treaty (PCT) (status on October 2017), World Intellectual Property Organization, https://www.wipo.int/pct/en/faqs/faqs.html (last visited Feb. 17, 2019).
 Intellectual Property and Space Activities: Issue paper prepared by the International Bureau of WIPO, World Intellectual Property Organization, Apr. 2004, https://www.wipo.int/export/sites/www/patent-law/en/developments/pdf/ip_space.pdf (last visited Feb. 17, 2019).
 18 U.S.T. 2410; World Intellectual Property Organization, supra note 12.
 35 U.S.C § 105 (1990).
 18 U.S.T. 2410.
 Garber, supra note 4; 18 U.S.T. 2410.
 Committee on the Peaceful Uses of Outer Space: Membership Evolution, United Nations Office for Outer Space Affairs, http://www.unoosa.org/oosa/en/ourwork/copuos/members/evolution.html (last visited Feb. 17, 2019).