Israels space race has an IP issue that needs its own exploration – CTech

Although NASAs first attempt at launching its Artemis rocket was ultimately scrubbed, the space launch system (SLS) and the Artemis program, in general, represent a new international focus on space, the moon, and beyond. Inventors and their innovations drive that dream, so it is valuable to assess the nature of intellectual property protection that those inventors might be granted in space.Intellectual property law, although often influenced by international agreements, is inherently local. A nations IP laws are effectively territorial rights that extend only as far (with a handful of judicial exceptions, e.g., WesternGeco LLC v. ION Geophysical Corp) as its physical borders. For the most part that excludes outer space, wherever that is. However, like many aspects of the law of space, we can look to the laws of other provinces of mankind here on earth including, for example, the high seas and Antarctica, to determine to what extent there is IP law in space.

The 1952 US Patent Act codified case law dating back to the 1865 Gardiner v. Howe case in legislating that US patent law jurisdiction extends to US-flagged ships on the high seas. Again, in 1990, the US congress applied Gardiner to extend US patent jurisdiction over US-controlled spaceships as well (Codified as 35 US 105).

Article 21 of the IGA which is devoted specifically to intellectual property on the ISS notes that infringing activities in any component within the ISS are deemed to have occurred in the nation state where that component is registered. This jurisdiction is not absolute. IP rules relating to secrecy do not extend to non-nationals that invent in those modules as they might on Earth.

Artemis aims to put humans on the Moon, Mars, and beyond which raises the question as to what sort of intellectual property laws if any will be enforced off of Earth and not on a registered space vessel. I.e., on the surface of the Moon.

As a viable space flag of convenience, we might see a huge increase in the number of foreign patentees in Israel (at last count there were around 1600 foreign applications per year, mostly pharmaceuticals) seeking to circumvent this loophole and patent in Israeli jurisdiction, as well as putative infringers seeking to register and launch their space vehicles from an Israeli commercial space port.In the meantime, the only current earth-based explorers, and potential patent infringers, on the moon or anywhere else in the solar system will continue to be robots. Consider, Mars is the only known planet wholly inhabited by robots. Could AI machines operating in outer space be infringers of patents? Could you sue for infringement? Who would you even sue?

Prof. Dov Greenbaum is the director of the Zvi Meitar Institute for Legal Implications of Emerging Technologies at the Harry Radzyner Law School, at Reichman University.

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Israels space race has an IP issue that needs its own exploration - CTech