Neil Armstrong walked on the moon 50 years ago on 20 July 1969. There is now renewed interest in returning to the moon, but rather than NASA directing missions, the interest is generated by, or outsourced to, private enterprise.
In part, this renewed interest is driven by technological advances over the past 50 years, which have significantly reduced the cost of conducting space-related activities. Lunar expeditions can theoretically be run at a profit.
The reduced cost has also allowed private enterprise to establish private commercial launch facilities. One example is Equatorial Launch Australia (ELA) in the Northern Territory. Having an Australian commercial launch facility should accelerate research and development of space-related technology in Australia.
The development of space-related technology generates significant amounts of intellectual property (IP). When IP is generated by private enterprise, the IP should be appropriately protected for commercial gain.
However, space is not subject to national appropriation. IP rights are jurisdiction based which puts them at odds with space law. The result is that the IP protection provided in a jurisdiction on Earth does not always translate into outer space. Protecting IP for space-related technology becomes complicated because the technology that is protected on Earth is used in space.
As an example of the interaction of space law and IP laws, and as previously discussed, the definition of the “patent area” in the Australian Patents Act makes it unclear as to the altitude where the patent area ends and space begins.
Private enterprise would benefit from greater clarity about where the patent area ends and where outer space begins. However, there is still no international agreement over the altitude where outer space starts, making it difficult to determine where existing jurisdictional boundaries end and where outer space begins.
Although the Australian Patents Act does not define where the “patent area” ends, there is at least some consistency between the definition of an aircraft in the Australian Air Services Act and Australian Civil Aviation Act and what is generally agreed to be the boundary of outer space according to the Karmen line (i.e. 100km altitude 1).
More recently, the Australian Space Activities Amendment (Launches and Returns) Act 2018 2 defined that a space object is an object that “is to go into or come back from an area beyond the distance of 100 km above mean sea level”.
Judicial and legislative review will be required to provide further clarity regarding the “patent area”, but, for the time being, if under Australian law a space object is an object that travels beyond a distance of 100km above mean sea level, this suggests that the start of outer space starts at an altitude of 100km. It follows, then, that the “patent area” of the Australian Patents Act should end at an altitude of 100km at the start of outer space.
Unfortunately, as the moon is 384,400km away, private enterprise will need to look at other ways of protecting their patent-eligible IP rather than relying solely on the “patent area”.
1 This altitude is still disputed and may change upon further international consultation.
2 (Cth), amendment 50.
Author - Stefan Paterson, Patent Attorney