This article is the third in a three-part series that explores the adequacies of current Australia IP laws and what effect this has on IP right holders. Part 1 can be seen here and Part 2 can be seen here.

How could the lack of extent of IP laws in outer speace be resolved?

The definition of the extent of the Patents Act could be amended to explicitly recite that it extends to outer space. The basis for such an amendment could be derived from 35 U.S.C. 105 as outlined in Part 2. For example, the definition of the extent of the Patents Act and the patent area could be amended to include a new category for outer space, such as

• (e) outer space on a space object or component thereof that is registered in Australia in accordance with the Convention on Registration of Objects Launched into Outer Space or that is under the jurisdiction or control of Australia.

Given it is possible for a space object not to be registered under the 1975 Convention, limiting the definition of a space object to one that is only registered under the 1975 Convention would not fully resolve the issue of the patent area with respect to outer space. For this reason, specifying that the space object could alternatively be under the jurisdiction or control of Australia in line with Article VIII of the Outer Space Treaty helps to cover the situation where a space object is not registered in Australia under the 1975 Convention. In effect, defining both the 1975 Convention and jurisdiction or control of Australia would help to prevent any gaps that could be exploited by bad actors. The above wording for the further definition of the extent of the Patents Act is merely a suggested starting point and would require consultation and input from those with expertise in space law and within the IP community.

Amending the Patents Act to define that its extent and the patent area extends to objects in outer space would remove doubt about how technology that is used in outer space should be protected, what provisions apply to inventions made in space, how secret use provisions operate, and would provide greater certainty to commercial operators operating in the Australian space ecosystem. Such an amendment would also eliminate any issue over the definition of “airspace”. For example, by defining both the “airspace” and “outer space”, the geographical delineation between the two can change over time without impacting the extent or patent area of the Patents Act.

Some may argue that there should be international consensus on how to deal with IP in outer space and that the mechanisms for such protection should be left to organisations such as the World Intellectual Property Organization (WIPO). Given the time and difficulty in reaching consensus among different nationals in respect to IP, it is likely that the commercialisation of space would have well and truly taken off before any international resolution could be achieved. Indeed, in 2004, WIPO identified the need to address issues relating to jurisdiction in outer space, and the possibility of declaring space as a single territory with a single and uniform law and with a single and universal enforcement body. However, this report foreshadowed the difficulty in harmonising IP laws to achieve an international consensus of what these laws would look like, let alone enacting IP laws to address these issues. In any case, some may argue that space law already provides a framework for enacting national legislation, providing a mechanism by which countries can formulate IP laws to cover activities in outer space.

Application to designs and trade marks

The focus of this series is on the Patents Act, but with the arrival of space tourism, it is also worth briefly examining the extent of the Australian Designs Act 2003 and Australian Trade Marks Act 1995. For example: by July 2021 Blue Origin sold $100M worth of tickets for future space flights; and in September 2021 SpaceX sent untrained astronauts into space for a three-day orbit. The definition of the extent of the Designs Act 2003 and Trade Marks Act 1995 is identical to the Patents Act. Notwithstanding the omission of an equivalent to a “patent area” in the Designs Act and Trade Marks Act, it is probable that the effect of the Designs Act and Trade Marks Act is limited geographically and, similar to the Patents Act, do not extend into outer space. Accordingly, the amendments proposed above at VIII could also be made to the extent Designs Act and Trade Marks Act. With space tourism expected to grow, it is only a matter of time before we see a contentious trade mark matter related to actions performed in outer space.

Conclusion

History shows that technology almost always advances faster than the law. The development and advancement of space technology and the commercial space sector is no different, with current Australian IP legislation being drafted before the prospect of commercial space enterprise.

With the explosion in the number of commercial entities performing activities in outer space, it is vital to ensure that current legislation keeps pace with the technological developments in this area. As this paper has demonstrated, this is not without challenge – the need to consider the Outer Space Treaty when viewing Australian IP laws for the protection of space-related technology presents unique issues for IP protection mechanisms.

While the Outer Space Treaty does not preclude national laws extending into space, the Patents Act is limited geographically and does not extend into outer space. The same can also be said for the Trade Marks Act and Designs Act. The effect of this is profound as it prevents an object in outer space from being protected under the Patents Act, even though that object can carry Australian jurisdiction under the 1975 Convention. The lack of patent protection for space objects is not necessarily a global problem; other nations have already addressed the protection of space objects in their legislation. As a result, Australia has a number of precedents to draw upon. A possible path forward to resolve the geographic limitation of the Patents Act may be to amend its extent and the patent area to include any object in outer space. This would help remove the current gap in Australia’s IP law protection, provide greater confidence to commercial enterprises engaged in outer space exploration, and put Australia at the forefront of providing robust IP protection for space-related technology. It’s time that Australian IP laws go beyond the stars.