Outerspace and the law

An at­tor­ney talks about patents and trade­mark is­sues that could or­bit the planet.

Houston Chronicle Sunday - - BUSINESS - By L.M. Sixel lm.sixel@chron.com twit­ter.com/lm­sixel

Con­stance Gall Rhebergen is an in­tel­lec­tual prop­erty lawyer at Bracewell. In the late 1980s —after grad­u­at­ing with a de­gree in chem­i­cal process en­gi­neer­ing — she worked on a NASA project to build an oxy­gen sta­tion on the moon. The plan was to ex­tract oxy­gen from sand. It’s still an con­cep­tual idea, she said with a laugh. Rhebergen went on to law school, but her last­ing in­ter­est in space and the prom­ise of com­mer­cial de­vel­op­ment be­yond Earth has spurred her in­ter­est in space-re­lated patents and trade­mark is­sues. She re­cently dis­cussed the cur­rent state of space law. Her edited com­ments fol­low:

Q: What sort of spe­cific space-re­lated is­sues are there in in­tel­lec­tual prop­erty?

A: Patents can be is­sued two ways: by gov­ern­ing bod­ies or un­der treaties. But there is no space patent.

Q: So, a patent can only be is­sued by an es­tab­lished coun­try?

A: Ex­actly. So this raises sev­eral ques­tions: How are we go­ing to deal with patent is­sues in space? Who would is­sue them? Who would en­force them? How do you make patent law work in space when there is no gov­ern­ment?

Q: Do you have an ex­am­ple of what could be an in­tel­lec­tual prop­erty con­flict in space?

A: The In­ter­na­tional Space Sta­tion is a great ex­am­ple. It’s a col­lab­o­ra­tive ef­fort among many coun­tries, so what or­ga­ni­za­tion could is­sue a patent that would be en­force­able on the sta­tion? It could be for a waste col­lec­tion sys­tem, a method of com­mu­ni­ca­tion back to Earth or ways to store en­ergy.

Q: What if the in­ven­tion is in­vented in the United States or some other coun­try? Wouldn’t those patent laws ap­ply?

A: Only in that coun­try. If you make, use or sell a patented in­ven­tion in outer space, there is no le­gal or reg­u­la­tory frame­work to pro­tect it. That means that your in­ven­tions are free to be used in outer space — with one ex­cep­tion. The United States and Ger­many have de­vel­oped laws about in­tel­lec­tual prop­erty in space. But any­one can work around it.

Q: Why is that?

A: Un­der cur­rent U.S. law, any­thing that is made, used or sold in a space ob­ject un­der the ju­ris­dic­tion or con­trol of the United States is con­sid­ered to have oc­curred in the United States. But the In­ter­na­tional Space Sta­tion isn’t un­der U.S. con­trol or ju­ris­dic­tion be­cause many coun­tries are in­volved in the pro­gram.

Q: Can you de­vise a sce­nario in which one com­pany dis­cov­ered that its patented prod­uct — say, so­lar cells to power the In­ter­na­tional Space Sta­tion —has been copied by a com­peti­tor? Is there any way to chal­lenge the copy­cat ver­sion?

A: Yes —if the prod­uct is leav­ing the United States or com­ing back to the United States. But if it’s in­vented or built in space —and stays in space — there is no way to pro­tect that in­ven­tion. Q: So is this mak­ing in­ven­tors ner­vous? A: The pur­pose of patent law is to pro­tect cap­i­tal in­vest­ments. With­out that pro­tec­tion, in­vestors won’t in­vest in outer space ac­tiv­i­ties. These are bil­lion-dol­lar in­vest­ments. We’ve seen a few no­table ex­cep­tions like Elon Musk, but we could have more. Q: What’s next in in­tel­lec­tual prop­erty space law? A: We need to de­velop a le­gal frame­work so busi­nesses can get into the space race. The World In­tel­lec­tual Prop­erty Or­ga­ni­za­tion is a clear­ing­house that ex­am­ines patent ap­pli­ca­tions for ad­her­ence to a es­tab­lished set of rules, but it doesn’t is­sue patents. I pro­pose they could is­sue patents for space.

Marie D. De Jesús / Hous­ton Chron­i­cle

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