There exists an inalienable tension, Griffith Hack patent attorney Dr Stefan Paterson noted, between space law — which was established for the benefit of mankind, meaning no nation or person can lay claim to property in space — and IP law, which typically consists of private interests for the benefit of a rights holder.
Marriage between the two presents a real challenge for IP lawyers moving forward, he said.
“For space IP — although IP laws will usually protect the technology to be deployed in space — they sit in the context of space law, where traditional jurisdictional boundaries are not always clear,” he explained.
“This will likely mean that conventional ways of protecting and enforcing IP may not work the same way in space.”
And as space-focused companies begin to rely more on IP for commercial gain, the protection of IP will become more important, Dr Paterson argued.
“Issues such as confidentiality (trade secrets and know-how), ownership, protection and exploitation of IP will become core aspects and assets of a business, and each type of business will require different IP strategies,” he said.
“IP lawyers will need to become more involved with companies at a corporate level and develop IP strategies in situ with commercial strategies.”
But there are also unique issues to address, he ceded. Addressing those concerns will require a “fresh look” at IP protection and, given the similarities between the law of international waters and space law, the protection of space IP will at least initially need to examine the way IP is protected in international waters, he predicted.
“For registered rights such as patents and trademarks, determining where a jurisdiction starts and ends will be important. For example, the Australian Patents Act does not define where the airspace above Australia starts and ends,” he mused.
“Enforcement of IP rights may also be difficult, such as how can you prove a third party infringes IP rights if no one is present to see the infringing act?”
“Actions such as discovery will likely become more important in the enforcement of space IP,” he said.
Elsewhere, depending on the technology and where it is being exploited, the potential for cross-border arbitration and disputes is high, Dr Paterson noted.
“For example, the Outer Space Treaty means that, for spacecraft under control of more than one jurisdiction, such as the International Space Station (ISS), multiple jurisdictions govern the spacecraft, which makes issues such as infringement more complex,” he said.
“Further, private companies are now performing experiments on the ISS, and the section in which the experiments are conducted will in part determine the law/s under which the data created is protected.”
But, ultimately, it is an exciting time for lawyers in the IP space, he said; as economies transition towards “knowledge-based economies”, IP will play an ever-increasing role in how those economies develop.
“Patents, designs, trademarks, trade secrets/know-how and copyright will all underpin knowledge-based economies, so the understanding and protection of intangible assets will become ever more important,” he argued.