Outer Space has always posed daunting challenges to the people who have attempted to conquer it. The technology involved in the domain of the outer space is generally considered to be high end and so the number of players interested in the domain is presumably high. One very important point of consideration is that while the investment on the technology is staggeringly high, the returns on investments are not assuring as of yet.
The underlying concept of the subject is that the outer space is not open for the individual control of any state, private entity, or otherwise. Interestingly, while high end technology stands as the basis for patent rights; space technology developed, worked in the outer space does not enjoy such protection around the world. Conflicting sources of origin, and the difference in the principles governing the realms of space and patent laws presents as a challenge to the future of commercialization.
As a mandate to cut back on the public investment, and the time factor, foreign space agencies like the NASA have sought bids for the development and investment in space technology by the private companies. This stands as a way to facilitate innovation in the space sector. It is safe to assume that wherever there is investment, there is the lawful expectation of returns on the investments made. While the space is not open for being appropriated for the individual means of any specific state, entity or otherwise; it is also to be understood that patent rights are not accorded to every investor or inventor, due to the vacuum in the laws.
With the exclusive exploitation of technology and with upcoming commercial ventures it is imminent that the legal issues be addressed with a comprehensive and stringent legislation. Strong deliberation has to be made for the acknowledgement of the rights of the inventors’ and only when the territorial limits of the patent laws are extended into the outer space, will it be feasible for the private entities to make high risk investments in the technology domain.
In a recent move, the government has decided to unlock the potential of a quite a number of unlisted companies by the means of disinvestment.[i] Stake sale has been planned for some of the profit earning subsidiaries, the list including Antrix Corp. This private limited company owned by the Indian government, a “Mini Ratna” company is the marketing arm of the Indian Space Research Organization (ISRO).
With the government wanting increased commercial participation in the space industry, an obvious implication which follows is the glaring need for the protection of the intellectual property which follows innovation in the outer space. While the NASA has been wise in considering patent benefits for the private sector, to promote participation and innovation, it is for India to follow the suit.
There are two very specific programs under which the NASA collaborates with the private sector enterprises for affordable and efficient technology implementation. The Commercial Cargo Development Program and the Commercial Crew Development Programs have been initiated for continued support and evolution of the International Space Station. The American aerospace manufacturer, SpaceX[ii], has been awarded a Commercial Orbital Transportation Services[iii] contract to launch a system to resupply cargo to the ISS. It is important to look into these examples, as they stand to save public capital investment and time.
Private collaboration in the realm of space explorations has gone to the extent where NASA has delegated the management of the US National Laboratory at ISS to CASIS. This is done by the execution of a Cooperative Agreement with intent to develop the capability to implement research and development projects utilizing the International Space Station (ISS) National Laboratory (NL) and to manage the activities of the ISS NL.[iv] It is to be understood that the organization has to comply with the research objectives, while creating public awareness of the research activities carried out in the national laboratory.
India is not a participant to this great outer space mission of the mankind. But as it goes, “That’s one step for [a] man, a giant leap for the mankind”. If we are to believe that space race will witness active participation from various countries, we are also to accept the fact that the private sector enterprises will be needed for effective and timely implementation of the advanced programs.
Where the government plans disinvestment for its privately held, marketing arm of the ISRO, it has to ensure that there are laws in place which protect the investments which flow towards the technology involved. The primary concern of any investment is the returns on investment, which can be achieved well in terms of technological ventures through commercial and exclusive exploitation of the technology. Patent rights serve as the best tool for monopolistic controls over the invention.
Where space technology is considered to be high end, severely complex, it is for the laws to recognize the potentials of the inventors and accord them with due rights to exploit their technology for monetary returns. Only by way of constructive deliberation and proactive involvement of the government in enabling and implementing a comprehensive patent regime for the space innovations, can the country expect the private sector to be interested in the rapid growth of space explorations and innovations.
We can look forward to a cross-sectoral discussion, involving representatives from the relevant sectors for a fair and responsible assessment of the present laws and capabilities. If we seek to empower our private sector, we need to specifically address the scope and the potentials of the sector. It is time that we analyze the performances of the private sector investment and involvement in the outer space activities as that of SpaceX, for a constructive feedback.
[ii] Space Exploration Technologies Corporation, SpaceX, is an American aerospace manufacturer, which also provides services of space transport. See more at, http://www.spacex.com/, Visited April 24, 2015.
[iii] Human Space Flight Transition Plan, p. 23. See also at, http://www.nasa.gov/subject/3622/commercial-resupply/, Visited April 24, 2015.
[iv] National Aeronautics and Space Administration Space Operations Mission Directorate, Cooperative Agreement Notice – ISS National Laboratory Management Entity, NNH11SOMD002C, at p. 1.
Amitava Chakraborty is an IPR, Space Law & Technology Consultant (India, US, EU) and an Indian Patent Agent (IN/PA-1467).