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They Came From Earth – IP Rights in Outer Space

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IP Law Essentials May 15, 2020

They Came From Earth - IP Rights in Outer Space Home Insights IP Law Essentials They Came From Earth - IP Rights in Outer Space Authors Name Christopher O. Green Person title Principal Sixty-two years ago today, on May 15, 1958, the Soviet Union launched the Sputnik 3 satellite from a spaceport in Kazakhstan with a mission to conduct geophysical research of the upper atmosphere and near space.[1] Although an extraordinary step toward exploration and understanding of space at the time, its launch was not as ground-breaking as that of its predecessor Sputnik 1, the first artificial satellite to orbit Earth.[2] Weighing in at just 183.9 pounds[3], less than heavyweight boxers of the day, Sputnik 1 nonetheless punched well above its weight class by setting in motion many defining events in politics, science and the law: the Space Race[4], the National Aeronautics and Space Act of 1958[5], and the creation of National Aeronautics and Space Administration ("NASA").[6]

The National Aeronautics and Space Act of 1958 ("Space Act of 1958") was drafted by the United States House Select Committee on Astronautics and Space Exploration and was signed into law by President Eisenhower on July 29, 1958.[7] The Space Act of 1958 charged NASA with planning, directing, and conducting the aeronautical and space activities of the United States.[8]

Section 305 of the Space Act of 1958 titled, "Property Rights in Inventions" made extensive modifications to patent law and provided that both employee inventions, as well as private government contractor innovations, may be subject to government ownership.[9]

The Space Act of 1958 is now codified in Title 51 of the U.S. Code titled, "National and Commercial Space Programs." Specifically, 51 U.S.C. 20102 provides that "the aeronautical and space activities shall be conducted so as to contribute materially to one or more of the following objectives:"

The expansion of human knowledge of the Earth and of phenomena in the atmosphere and space.The improvement of the usefulness, performance, speed, safety, and efficiency of aeronautical and space vehicles.The development and operation of vehicles capable of carrying instruments, equipment, supplies, and living organisms through space.The establishment of long-range studies of the potential benefits to be gained from, the opportunities for, and the problems involved in the utilization of aeronautical and space activities for peaceful and scientific purposes.The preservation of the role of the United States as a leader in aeronautical and space science and technology and in the application thereof to the conduct of peaceful activities within and outside the atmosphere.The making available to agencies directly concerned with national defense of discoveries that have military value or significance, and the furnishing by such agencies, to the civilian agency established to direct and control nonmilitary aeronautical and space activities, of information as to discoveries which have value or significance to that agency.Cooperation by the United States with other nations and groups of nations in work done pursuant to this chapter and in the peaceful application of the results thereof.The most effective utilization of the scientific and engineering resources of the United States, with close cooperation among all interested agencies of the United States in order to avoid unnecessary duplication of effort, facilities, and equipment.The preservation of the United States preeminent position in aeronautics and space through research and technology development related to associated manufacturing processes.The search for life’s origin, evolution, distribution, and future in the universe.51 U.S.C. 20102.

Section 20135 of 51 U.S. Code, which is directed to intellectual property rights in inventions, remains largely unchanged from the Space Act of 1958 and grants the same broad authority of ownership to the government over both employee inventions as well as private government contractor innovations.

In particular, 51 U.S.C 20135 provides that an invention shall be the exclusive property of the United States if it is made in the performance of any work under any contract of NASA and if NASA determines that

the person who made the invention was employed or assigned to perform research, development, or exploration work and the invention is related to the work the person was employed or assigned to perform, or was within the scope of the person's employment duties, whether or not it was made during working hours, or with a contribution by the Government of the use of Government facilities, equipment, materials, allocated funds, information proprietary to the Government, or services of Government employees during working hours; orthe person who made the invention was not employed or assigned to perform research, development, or exploration work, but the invention is nevertheless related to the contract, or to the work or duties the person was employed or assigned to perform, and was made during working hours, or with a contribution from the Government as provided in item 1.51 U.S.C. 20135.

These provisions and NASA's authority to enter into contracts with third parties under 51U.S.C. 20113 can pose challenging issues of ownership and enforcement for those who wish to commercialize their space technology-related inventions.

We will explore these and other issues in our upcoming posts but for now we leave you with a suggestion to listen to Chris Hadfield's poignant cover of David Bowie's Space Oddity[10] while on board the International Space Station featuring out of this world shots of Earth.

[1] Melanie Whiting, 60 years ago, Soviets launch Sputnik 3 (May 15, 2018), https://www.nasa.gov/feature/60-years-ago-soviets-launch-sputnik-3.

[2] Steve Garber, Sputnik and the Dawn of the Space Age (October 10, 2007), https://history.nasa.gov/sputnik/.

[3] Id.

[4] Id.

[5] Steven J. Dick, Why We Explore (March 28, 2008), https://www.nasa.gov/exploration/whyweexplore/Why_We_29.html [hereinafter Why We Explore].

[6] Id.

[7] Why We Explore, supra n.5.

[8] NASA, National Aeronautics and Space Act of 1958 (Unamended) (July 29, 1958) https://history.nasa.gov/spaceact.html

[9] Id.

[10] Chris Hadfield, Space Oddity https://chrishadfield.ca/space-oddity/ (last visited May 7, 2020).

More questions? Contact the authors or visitFish's Intellectual Property Law Essentials.

The opinions expressed are those of the authors on the date noted above and do not necessarily reflect the views of Fish & Richardson P.C., any other of its lawyers, its clients, or any of its or their respective affiliates. This post is for general information purposes only and is not intended to be and should not be taken as legal advice. No attorney-client relationship is formed.

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