Space Exploration: Who Owns Commercial Space Projects?

Magaly Taylor, Contributing Member 2023-2024

Publications Editor 2024-2025

Intellectual Property and Computer Law Journal

I. Introduction

In 2022, the global space economy grew to $546 billion, with $119 billion coming from government entities, and is expected to climb approximately 41% by 2027.[1] The growing interest in space exploration for commercial purposes has significantly increased in the past decade and will continue to grow worldwide.[2] Thus, international laws must adapt to current space exploration to prevent limiting private companies from advancing space research. 

This article will discuss the issue of international space treaties conflicting with modern commercial space exploration, along with the challenges private companies will face if international agreements are not modernized to meet current needs. Part II explains the background in patent law, relevant international space treaties, and the significant shift from state to private space exploration. Part III discusses the need for modernized intellectual property for objects in space and the challenges that private companies will face if international agreements do not adopt intellectual property laws for space projects.

II. Background

Patent Law

Article I, S. 8 Clause 8 and 18 grant Congress the power to establish a patent system.[3] A patent is a legal document that gives an inventor exclusive intellectual property rights over their process, design, or invention.[4] Patent laws have changed significantly since the first patent act was established in 1790.[5] There are “three doors” that a patent holder has to go through to qualify for a patent.[6] The patent has to meet the utility standard, novelty, and a non-obviousness requirement.[7] U.S. Patent law provides for three separate types of patents: design, plant, and the most common, utility patents.[8] 3 USC Section 101 states that an inventor may obtain a patent on the claimed invention if the invention falls under one of four categories: useful process, machine, manufacture, or composition of matter.[9]  Three categories are not generally eligible for patenting: laws of nature, natural phenomenon, and abstract ideas.[10] It is important to distinguish that the manufacture and composition of matter include combinations of substances; however, they do not include sciences that have been discovered unless those discoveries have been transformed to a new idea, formula, or test.[11] For example, in Diamond v. Chakrabarty, the court held that a human-made microorganism is patentable under utility because it was man-made,[12] but in Mayo Collaborative Services the court held that a natural phenomenon must be transformed to make the discovery patentable because it would limit scientific processes.[13]

Relevant International Space Treaty

The United Nations (“UN”) began discussing the preservation of outer space for peaceful purposes in the late 1950s.[14] In 1967, the UN General Assembly approved the Outer Space Treaty, which prohibits military activities on celestial bodies.[15] The treaty has 110 state parties and 89 countries that still need to complete the ratification.[16] The treaty also states that space and celestial bodies accept national claims of ownership, and that the countries exploring space would be responsible for damage their activities may cause.[17] Article XV of the treaty permits countries to propose amendments.[18] For an amendment to be adopted, it has to be accepted by the majority of the state parties, and it would only be binding on the countries that approved the amendment.[19]

The Moon Agreement was adopted on December 1979 and it further supplements the Outer Space Treaty by prohibiting the use and testing of any weapon.[20] The agreement states that state parties are required to inform the United Nations, the public, and the international scientific community of moon exploration activities, such as the purpose of the mission, location, duration, scientific result, and other relevant information that would be beneficial to the scientific community.[21] Third, the agreement states that the moon, nor its natural resources, should not be appropriated by any claim of sovereignty by occupation or other means.[22] Lastly, the agreement states that the placement of personnel, equipment, facilities, or other instruments below the surface of the moon shall not create a right of ownership over any area of the moon.[23]

From State to Private

Space activities, including the commercialization of space exploration, have shifted from being state-owned to becoming private and commercial activities.[24] During the 1970s, the National Aeronautics and Space Administration (NASA), a government agency, was fully funded by the government.[25] However, funding was reduced after losing popularity and reaching the moon.[26] Commercial exploration started shortly after NASA’s reduced funding in the early 2000s.[27] As a result, SpaceX was relatively successful, which resulted in a deal with NASA.[28] Similarly, Blue Origin was able to secure a contract with the Air Force to supply rockets.[29] Due to the success of privatized space explorations, more companies have started to shift towards space exploration, resulting in an increased commercial market.

III. Discussion

The Need for Modernization

In 2022, 186 orbital launches were attempted, with commercial launches accounting for 81 of these launches.[30] The number of orbit launches has also increased substantially from previous years.[31] SpaceX, for example, launched batches of satellites to outer space to provide global broadband internet coverage.[32] SpaceX launches are a primary example of why modernizing the standard for intellectual property rights is necessary. With the growing number of private companies entering the space market for private reasons, it is essential that they be supported through international treaties and agreements on their intellectual property.

Although the U.S. has enacted its laws regarding  space activities for commercial purposes, these laws have not been effective because it limits the jurisdiction to the U.S, which do not have to be honored by foreign nations. International intellectual property rights are important for expanding commercial exploration of outer space.[33] International treaties, which are meant to regulate the peaceful use of outer space, need to adapt and be modernized to commercial space exploration rather than just focusing on government work.

Lastly, private investment in space exploration is essential, and without international support for intellectual property funding and exploration may be limited which could result in limits to inventions and discoveries that could enhance U.S. technology. It would also reduce the number of patent applications in the United States because it would be easier to register and infringe in a foreign country.

Challenges to IP Rights in Outer Space

Finding the balance between sharing private companies’ scientific knowledge and encouraging global collaboration will be challenging because intellectual property rights may conflict with established treaties. Of the government funding last year, 60% of it was by the U.S. China followed with second place with only 14%.[34] This shows that private companies are growing, and it will be challenging to separate state and private entities’ business in relation to space exploration and it is important to protect new technology worldwide.

IV. Conclusion

In conclusion, there is no appropriation with the current international law framework, and, as a result, it could hinder commercial space exploration, especially since space exploration.

International agreements must be made with respect to international space projects. Although there will be challenges with separating private and state missions, it is crucial to create a solution that will protect private companies and allow them to further research on space exploration.

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[1] Loren Grush, Tyler Kendall, Bloomberg, The commercial space industry, led by Elon Musk’s SpaceX, is expected to blast off with 41% growth over the next 5 years, Fortune, (July 24, 2023, 5:04 PM), https://fortune.com/2023/07/24/space-industry-revenue-growth-five-years/.

[2]  Id.

[3]  Will Kenton, What Is a Patent in Simple Terms? With Examples, Investopedia, https://www.investopedia.com/terms/p/patent.asp (February 11, 2024).

[4]  Id.

[5]  Id.

[6] Application of Bergy, 596 F.2d 952 (C.C.P.A. 1979)

[7]  Id.

[8]  Id.

[9]  3 U.S.C. § 101

[10]  See, e.g., Diamond v. Chakrabarty, 447 U.S. 303 (1980).

[11]  Id.

[12]  Id.

[13]  See, e.g., Mayo Collaborative Services v. Prometheus Laboratories Inc., 566 U.S. 66 (2012).

[14] Daryl Kimball, The Outer Space Treaty at a Glance, Army Control Association, (Oct. 2020), https://www.armscontrol.org/factsheets/outerspace#:~:text=The%201967%20Outer%20Space%20Treaty,treaty%20entered%20into%20force%20Oct.

[15] Id.

[16]  Id.

[17]  Id.

[18]  Id.

[19] Id.

[20] Moon Agreement, NTI,  https://www.nti.org/education-center/treaties-and-regimes/agreement-governing-activities-states-moon-and-other-celestial-bodies-moon-agreement/ (last visited Mar. 7, 2024).

[21] Id.

[22] Id.

[23] Amber Kaur Toor, The privatization of the space industry is negatively affecting the environment, Scots Scoops, (April 29, 2022),  https://scotscoop.com/the-privatization-of-the-space-industry-is-negatively-affecting-the-environment/.

[24] Id.

[25]  Id.

[26]  Id.

[27] Id.

[28] Id.

[29]  Id.

[30]  Loren Grush, Tyler Kendall, Bloomberg, supra note 1.

[31] Id.

[32] Id.

[33]  R. Saha, Protecting Intellectual Property Rights in Outer Space, CIIIPR, https://www.ciiblog.in/protecting-intellectual-property-rights-in-outer-space/ (last visited Mar. 8, 2024).

[34] Loren Grush, Tyler Kendall, Bloomberg, supra note 1.