Patent Law And The Cosmos - Analysing The Legal Implications In Outer Space

Author: LawSphereX

Category: Intellectual Property

Published: 2026-08-23T20:43:22.293442+00:00

Updated: 2026-08-26T17:10:12.322+00:00

PATENT LAW AND THE COSMOS: ANALYSING THE

LEGAL IMPLICATIONS IN OUTER SPACE

Angela Singh, LLM (Intellectual Property), Amity Law School, Noida,

ABSTRACT

Expansion of patent jurisprudence can be credited to the fast-paced technological driven economies, innovation and evolution in scientific research which is the driving force of development in the 21st century. With such advancements, the question of patent protection is extended to borders beyond earth – and into outer space. Space law, as a specialized branch of international law, examines outer space as a ‘common heritage of mankind’, including several doctrines that promote equal rights to all, as opposed to the exclusive rights granted under patent law. This distinction between space law and patent law’s approach contributes to a multitude of issues related to uncertainty in jurisdiction, territorial limitations, ambiguity in enforcement mechanisms and ownership rights in technology sharing.

Moreover, the contemporary space operations notably space mining and the emergence of private sector in this arena proves the complexity of their intersection. This research paper aims to bridge the gap in these two disciplines by thoroughly analysing the legal framework governing patents in outer space. It calls for action to adopt for a development in international cooperation through agreements or specific legislation and proposes possible solutions.

Introduction "One small step for man, one giant leap for mankind," As said by Neil Armstrong, the first man to have taken steps on the moon on July 20th in 1969. His evergreen words that have been etched in history are in complete congruence with the space law jurisprudence that has been developed till date. The success of the Apollo 111 mission was not solely the achievement of the United States, but the entire world as it made reverberations in the field of technology, science and most of all a sense of international cooperativeness. However, it is interesting to note that much of the technology that went behind the endeavour of the moon landing mission is patented by NASA. Private sectors institutions can get a license from NASA today, and it has around 30% of its patents licensed2.

While the derivate technologies from the Apollo 11 mission such as freeze-dried foods, thermal protection systems and water filtration systems have influenced many product patents3, it can certainly be deduced that pride and delight has taken the spotlight, whereas commercial exploitation and intellectual property law’s position has proved to be somewhat of an afterthought. The utilization of the above-mentioned patents is acceptable, however numerous questions arise when we think about industriously exploring, experimenting and even living in space in relation to the enforcement of intellectual property rights. A bold proclamation of space tourism, made by the company called Orbital Assembly Corporation (OAC) plans to set up the first space hotel by 2027, called Voyager Station4.

Easily, in such a scenario, the patentability issues with the space technology, artificial gravity systems, transportation, and what not, will not just be confined to patent laws but will extend to the trademark of the hotel, data privacy and ownership from guests, licencing and transfer, copyright of media content, designs, and software – the list goes on. Their registration, applicability and infringement show the stark contrast between the two distinct laws of IPR and Space.

1 John F. Kennedy, Special Message to the Congress on Urgent National Needs (May 25, 1961).

2 Gene Quinn, NASA Is Granted a Patent for Identifying a Faster, Cheaper Moon Route—Has a New Space Race Begun?, IP CloseUp (Nov. 17, 2020), https://ipcloseup.com/2020/11/17/nasa-is-granted-a-patent-for-identifyinga-faster-cheaper-moon-route-has-a-new-space-racebegun/#:~:text=A%20History%20of%20Licensing,patent%20can%20be%20found%2C%20here.

3 The Apollo 11 Spinoff Technologies We Still Use Today, Tech Briefs (July 21, 2019),

https://www.techbriefs.com/component/content/article/34789-the-apollo-11-spinoff-technologies-we-still-usetoday.

4 T. P. M. Reilly, The First Space Hotel Plans to Open in 2027, Astronomy (Jan. 18, 2023),

https://www.astronomy.com/space-exploration/the-first-space-hotel-plans-to-open-in-2027.

Principles of Space Law At its core, the principles that govern IP and Space are essentially antonyms. Space law’s foundation vests in the doctrine of Common Heritage of Mankind, whist Patent law propounds monopolistic private rights to individuals. The genesis of CHM can be traced back to the United Nations General Assembly Resolution 27495, Article 1, which states that the sea and its resources are the common property, to be utilized by and in the interests of mankind. Under Roman law, certain entities were classified as res communes, signifying that they were collectively owned by all and, therefore, could not be subject to private ownership or exclusive rights. Such entities typically encompassed natural elements like the rainwater, air, river waters, the sea, and its coastal regions.

6 In contemporary international law, the concept of res communes primarily applies to the high seas, outer space, and celestial bodies—domains that remain beyond the sovereignty of any individual state. Nations are obligated to abstain from actions that could hinder or impair their equitable use by others. 7 The term Res Communis signifies the notion of the public domain and the collective heritage of humanity. It is frequently juxtaposed with Res Nullius, which refers to property devoid of ownership. In the realm of international law, Res Nullius describes territories that do not fall under the sovereignty of any particular state.

8 General Assembly Resolution 1721 (XVI)9 Addressed matters concerning outer space and articulated the principle that: "outer space, including all celestial bodies, is free for exploration and use by all states in conformity with international law, and is not subject to national appropriation. " Six years later, this principle was enshrined in the Outer Space Treaty, forming the foundation for subsequent advancements in space law. This phrase should be understood as a legal doctrine signifying a form of collective ownership, wherein no individual state may unilaterally exploit or appropriate shared resources without securing the consent of all states, as formalized through a binding convention, treaty, or

5 U.N. GAOR, 25th Sess., U.N. Doc. A/RES/2749(XXV) (Dec. 17, 1970).

6 M. Kaser, Roman Private Law 81 (2d ed. R. Dannenbring trans. 1968).

7 I. Brownlie, Principles of Public International Law, 164-66 (1966).

8 Aakanksha Mishra, The Great Beyond: Understanding Patents in Outer Space, 7 Indian J. Intell. Prop. L. 85 (2014-2015).

9 U.N. GAOR, 16th Sess., Agenda Item 22, U.N. Doc. A/RES/1721 (Dec. 20, 1961).

declaration. 10 This principle is enshrined in the Outer Space Treaty, 196711, The Moon Agreement, 197912, UNCLOS13 and is generally accepted as a principle of International law. Another notable principle to mention would be that of the principle of Non – Appropriation. The expression “not subject to national appropriation” in Article II is widely recognized as the non-appropriation principle. The geopolitical tensions of the Cold War that influenced the Treaty’s creation, coupled with the prevailing conditions of space exploration at the time, along with documented evidence in the Treaty’s travaux préparatoires and contemporary legal scholarship, collectively indicate that the non-appropriation principle was initially interpreted in a broad manner under customary international law.

14 During the 1960s, nations were deeply concerned about the potential consequences if the two dominant space-faring powers of the era—the United States and the Soviet Union—were to acquire legal authority over outer space or celestial bodies, enabling them to deploy nuclear weapons from such territories. 15 Additionally, strategic motivations existed to ensure that outer space remained accessible and unclaimed, facilitating the use of satellites for intelligence gathering and surveillance. 16 The drafting and ratification of the Outer Space Treaty were primarily driven by the objective of preventing territorial appropriation—a purpose that would have been significantly compromised had the signatories not originally interpreted the Treaty in a broad and comprehensive manner.

The technological constraints of the era in which the Treaty was formulated further inform the understanding of the intended scope of the non-appropriation principle. The absence of explicit references to private individuals and corporations was likely not a deliberate exclusion but rather a reflection of the prevailing assumption that only sovereign states would engage in space activities, rendering any consideration of private actors unnecessary at the time. Broadly, speaking, these two principles are form the grundnorm of space law. 10 Arnold, Rudolph Preston, The Common Heritage of Mankind as a Legal Concept, 9 Int'l Law. 153 (1975). 11 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 U. N. T. S. 205, art. 1.

12 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 5, 1979, 1363 U. N. T. S. 3, art. 11.

13 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 3, art. 136.

14 Abigail D. Pershing, Interpreting the Outer Space Treaty's Non-Appropriation Principle: Customary

International Law from 1967 to Today, 44 Yale J. Int'l L. 149 (2019).

15 See Gabrynowicz, note 5.

16 Thomas Gangale, The Development of Outer Space: Sovereignty and Property Rights in International Space Law 11 (2009).

Patent Law Perspective Conceptualised as "a bargain between the inventor and the government",17 Patents serve as a mechanism to foster scientific progress and technological innovation by granting inventors exclusive rights as an incentive for their contributions. Within the realm of outer space commercialization, the most significant intellectual property rights are those categorized under industrial intellectual property, which safeguard investments made by industries in research and development of novel technologies. Despite variations in national legal frameworks, a degree of harmonization has been achieved through multilateral agreements that set baseline international standards for patent protection, most notably the World Trade Organization’s Agreement on Trade-Related Aspects of Intellectual Property Rights ("the TRIPs Agreement").

Patent law is often described as having a dual character, as it operates at the intersection of both international and domestic legal frameworks. 18 Domestically, patent rights are conferred and upheld by the legal systems of individual states. Internationally, multilateral treaties establish uniform minimum standards of protection, ensuring that inventors receive a consistent level of patent security across jurisdictions. 19 Despite the harmonization of patent standards at the international level, patents fundamentally remain territorial rights, granted and regulated by individual national governments. While multilateral treaties have contributed to a degree of uniformity in domestic protection standards, a truly universal enforcement mechanism has yet to be established.

Even frameworks designed to enhance international cooperation, such as the Patent Cooperation Treaty of 1978 and regional agreements like the European Patent Convention, primarily function as procedural mechanisms to streamline the filing of multiple national patent applications rather than establishing a singular, supranational patent system. The exclusivity given to the patent holder ensues a number of rights to exploit their invention, and the granting of these rights is extremely territorial in nature. The patent holder must get acceptance in two jurisdictions – domestic as well as international, which may or may not be granted in both. The subject of territoriality and exclusivity is at the heart of most Intellectual Property Rights, encompassing subsequent paradigms of protection and repercussions. A patent

17 Robert P. Merges & John F. Duffy, Patent Law and Policy: Cases and Materials 4 (2018).

18 A. M. Balsano, Intellectual Property Rights and Space Activities, 15 ECSL NEWS (Sept. 1995),

http://esapub.esrin.esa.it/ecsl/ecsl15/ecsll5ba.htm.

19 Tim Smith, A Phantom Menace - Patents and the Communal Status of Space, 34 VICTORIA U.

WELLINGTON L. REV. 545 (Aug. 2003).

can only restrict the exploitation of an invention if the granting state possesses the jurisdiction, under international law, to enforce its legal authority against the infringing party. 20 Flag – State Practice "Flag-State" jurisdiction enables states to extend their legal authority beyond their territorial boundaries by granting the state of a vessel’s registration (the "flag State") exclusive jurisdiction over that vessel while it operates in areas not subject to territorial sovereignty. This principle was originally established in the context of the res communis doctrine concerning the high seas, ensuring regulatory oversight in regions beyond national ownership,21 And is regarded as a fundamental component of the principle of "freedom of the high seas".

22 The nationality of a vessel serves as a crucial jurisdictional criterion in circumstances where territorial jurisdiction is inapplicable. In the context of space law, the equivalent concept applies to "space objects," as defined in United Nations space treaties, with nationality being established through registration—drawing a parallel to maritime law. The compulsory registration of space objects is mandated by the Registration Convention, which obliges the state responsible for launching or procuring the launch of a space object to record it in its national registry. Under this framework, states that register a space object maintain jurisdiction and control over both the object itself and any personnel associated with it.

23 Although the issue of flags of convenience arises in both international waters and outer space, a key distinction exists between these domains: vessels operating in international waters are subject to additional regulatory oversight through their destination ports, which serve as an extra layer of enforcement,24 in contrast, space objects lack such regulatory checkpoints. For instance, if a vessel transports cargo that infringes a United States patent, it would be barred from unloading that cargo at any U. S. port. However, a space object registered under a foreign jurisdiction remains beyond the reach of U. S. authority, irrespective of whether its use of a particular technology would otherwise constitute patent infringement under U. S. patent law. 25

20 Ibid at 8.

21 United Nations Convention on the Law of the Sea, art. 92(1), Dec. 10, 1982, 21 I.L.M. 1261.

22 Sellers v. Maritime Safety Inspector, [1999] 2 NZLR 45, 47 (CA) (Keith J.).

23 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. 8, Jan. 27, 1967, 15 U.N.T.S. 206. 24 William C. Pannell, Pirate Battles in Outer Space: Preventing Patent Infringement on the 8th Sea, 46 U. MEM. L. REV. 742, 743 (2016).

25 Yong Bum Lee, Public Space, Private Patents: Updating International Space Law to Protect Patents in Outer Space, 33 HARV. J.L. & TECH. 293 (2019).

To uphold their obligations under UN treaties, including oversight responsibilities and liability for damages, many states have implemented national space legislation to regulate space-related activities conducted under their jurisdiction. These laws encompass a broad spectrum of regulatory areas, such as registration, safety measures, insurance and indemnification, environmental safeguards, and enforcement mechanisms. In accordance with the Outer Space Treaty and the Registration Convention, a state assumes liability for any damage caused by space objects registered under its authority. 26 Consequently, as a prerequisite for registration, numerous states mandate that private entities secure a certain level of liability insurance and provide indemnification for any damages resulting from their space-related activities.

27 Establishing clear limits on the maximum liability a private entity may incur for potential damages offers legal certainty and strong incentives for entities to register with a specific state, potentially addressing concerns related to flags of convenience. Privatization Contention Following the Space Rush after the Apollo 11 mission between USA and USSR, the arena has only expanded and propelled more states to join the bandwagon. Most space exploration efforts are state secrets, with vital information and scientific research backing coupled with the investment of huge capital and labour. The conundrums that the privatization attempt in outer space, are many – an example is space tourism, as mentioned above.

As a means of profit, it can attract a lot of investors, seeing as billionaires of the world, for instance Elon Musk and his SpaceX program28 to colonize Mars, to claim an establishment of self-sufficing community, and claiming self-determination – Which in itself raises multitudes of legal questions, beyond the ambit of discussion in this paper. Another example is Jeff Bezoz, the owner of spaceflight Blue Origin29, has made headlines for his privately funded trips to sub-orbital space. Blue Origin's goal30 is to establish an industrial base in space.

I believe that the conquest to conquer space in today’s generation of billionaires, although may seem like a far-fetched effort, poses threats which definitely reach to patent laws and far beyond into an authoritarian, dystopian 26 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. 13, Jan. 27, 1967, 610 U. N. T. S. 205

27 Ibid at 24.

28 SpaceX, Human Spaceflight – Mars, SPACEX, https://www.spacex.com/humanspaceflight/mars/ (last visited Mar. 29, 2025).

29 List of Billionaire Space Travelers, WIKIPEDIA,

https://en.wikipedia.org/wiki/List_of_billionaire_spacetravellers (last visited Mar. 29, 2025).

30 Blue Origin, Home, BLUE ORIGIN, https://www.blueorigin.com/ (last visited Mar. 29, 2025).

and restricted society as the monopoly of power as well as the technology used to create such a position of power (through patents) will be unshakable – Although this contention is a conjecture, it merits further examination. Space Mining and Patents The growing interest in asteroids, driven by efforts to unravel Earth's origins and analyze their composition—potentially paving the way for future mining operations—is rapidly accelerating. Asteroid mining appears increasingly inevitable, with China planning a mission in 2025 to retrieve samples from a near-Earth asteroid, while the United Arab Emirates’ Space Agency aims to explore the asteroid belt through a mission set for launch in 2028. NASA has dispatched a spacecraft toward asteroid Psyche, which orbits the Sun between Mars and Jupiter, though it is not expected to arrive until 2029.

According to some estimates, the iron content within this 140-mile-wide, metal-rich asteroid holds a staggering valuation of 0,000 quadrillion—far exceeding the total worth of the global economy. 31 Historically, prohibitively high launch costs and insufficient investment in essential technologies hindered progress in space exploration. However, a surge in private sector investment has significantly reduced launch expenses, reigniting the competition to establish a presence in extraterrestrial operations. 32 The tryst if space mining and patents create a myriad of issues – Patent law as a general rule stipulates that the criteria for patent protection is based on novelty, inventive step and industrial application. This includes new technologies related to space mining, such as machinery for asteroid drilling or methods for processing lunar minerals.

However, challenges arise in defining the territorial scope of patents, as patent rights are typically restricted to the jurisdiction of the granting country. The principle of Non – appropriation under OST33 states that meaning that no state can claim sovereignty over outer space or celestial bodies This raises questions about how patent rights 31 Jackie Wattles, Asteroid Mining Startup Prepares for First Mission in Partnership with NASA, CNN (Apr. 27, 2023), https://edition. cnn. com/world/astroforge-asteroid-mining-nasa-spc-scn/index. html. 32 Scarlett Evans, Mining in Space: Who Owns the Moon? , MINING TECH. (Nov. 6, 2020), https://www. miningtechnology. com/features/mining-in-space-who-owns-the-moon/.

33 Ibid at 14.

apply to activities beyond Earth’s atmosphere, particularly with regard to ownership of resources extracted from space. Patent law is inherently territorial, meaning that patents are enforceable only within the borders of the country in which they are granted. Space mining, however, occurs outside traditional territorial boundaries, leading to uncertainty about where patent infringement might occur. Given the extraterritorial nature of space activities, it remains unclear whether patent laws of Earth-based jurisdictions can apply to space mining technologies used on celestial bodies. Suggestions The globally acknowledged boundary between Earth and outer space, known as the Kármán Line, is set at an altitude of 100 kilometres above Earth and has been proposed as a jurisdictional threshold for extending national laws, including patent regulations, to space objects.

34 However, the notion of using this demarcation as a legal boundary for the application of national laws remains a subject of debate and lacks universal acceptance. The significance of setting up a lawful system that adequately secures IP in space can't be overemphasized. More consideration ought to be paid to the assurance of licensed innovation rights, taking into account the development in the commercialization and privatization of room related exercises. In any case, the assurance and requirement of licensed innovation rights ought to be viewed as along with the global lawful standards created by the UN as deals and assertions, like those identifying with the rule of non-apportionment of space.

35 Specifically, the conceivable requirement for rules or standards covering issues, for example, the accompanying could be analyzed and explained: appropriateness of public enactment in space; proprietorship and utilization of protected innovation rights created in space exercises; and contract and authorizing rules. The struggles between Intellectual Property Laws and Space Law system ought to be settled through a fit framework which could be created by the worldwide IPR and Space Law people group under the sponsorship of UN Bodies like United Nations Committee on the Peaceful 34World Intellectual Property Organization, Uniformity of

IP

in Outer Space,

WIPO,

https://www.wipo.int/web/patents/topics/outerspace (last visited Mar. 29, 2025). 35 Swagatha Daas, Intellectual Property Rights in Regard to Space Activities: Its Rights and Liabilities, 5 INT'L J.L. MGMT. & HUMAN. 1306 (2022).

Uses of Outer Space (UNCOPUOS) and the WIPO, said blended arrangement of IPR system for the space ought to completely follow the essential standards of global space law and such other worldwide commitments. Further it is firmly suggested that the fit framework considers the interests of non-industrial nations too and advances good and moral utilization of the space to help the whole mankind. 36 Conclusion The dance of Patent laws and Outer Space needs to have more rhythm to it – Dedicated discussions on an international level must be envisaged and an international legal order must be put in place. Treaties, conventions and protocols on this matter requires immediate attention, as it is estimated that in the next decade, space industry could be valued at an estimate of 1 Trillion Dollars by 204037.

Whilst I fully support the principles of space law to combat any immediate problems and their universality, their actual enforcement is not the most formidable. International laws applicability has always been a subject of scrutiny, but in my opinion, it is no sanction to succumb to impiety. Hence, the strong assertion that no nation-state can claim sovereignty on the commons is a very valid and protectionist rule, which could prevent many problems, including encroachment of human rights in the long run. Lastly, I would like to quote the famous song- ‘The World is Not Enough’,38 featuring the evergrowing wants of human nature, in this case, scaling beyond our home planet and proclaiming the infinite outer space – IPR protection on just Earth is definitely not enough.

36 Id.

37 Michael Sheetz, Space Industry Is on Its Way to Trillion in Revenue by 2040, Citi Says, CNBC (May 21, 2022),https://www.cnbc.com/2022/05/21/space-industry-is-on-its-way-to-1-trillion-in-revenue-by-2040citi.html.

38 Which was featured in the 19th James Bond Film, performed by the American rock band ‘Garbage.’