Archive for August, 2012
No man, no industry, no new technology is an island. Our understanding of the universe and our ability to manipulate our surroundings via technology is possible only because we, as Isaac Newton put it, are “standing on the shoulders of giants.” The pace of innovation in many fields, the software field in particular, has led to development after incremental development being built upon technologies that have barely made it to market, creating overlapping intellectual property rights which are allegedly choking innovation. These “dense web[s] of overlapping intellectual property rights”, or patent thickets, require that companies must license technologies from multiple sources in order to bring a new product to market.
Many people fear that the commercial space industry will be condemned to the same “innovation-choking” state of affairs as our sector matures. If history is any guide, however, neither the software industry nor the future booming commercial space industry will be necessarily bogged down in perpetual patent wars.
Aladdin’s genie had “Phenomenal cosmic powers! Itty-bitty living space!” Space Act Agreements (SAAs) are very similar. They give NASA considerable flexibility to partner with private entities. NASA can start from essentially a blank slate in order to create an agreement aimed toward a specific goal like using the International Space Station as a national laboratory or developing robotic vehicles capable of delivering supplies to low earth orbit. On the other hand, SAAs may not be used in many circumstances. For example, funded SAAs are typically used only where a NASA objective cannot be achieved through the use of traditional contracts. When SAAs are used, The Chiles Act may force NASA to take ownership of any intellectual property developed under the SAA. However, there are ways to avoid the title taking action. Even when NASA does take title to the IP, many SAAs provide a clear path to returning ownership of patents and other IP that is developed under the SAA to the private developer.
In part 1 of Property Rights in Space, the need for a system of recognition and enforcement of private property claims for land and tangible goods was established. An overview of how property rights on earth are defended and enforced was also examined. I suggest that the earth-side model of enforcing property rights in land and in tangible goods via monetary punishments should be adapted for violations of property rights in space. In the near term, private ownership of land on other celestial bodies and goods derived from space-based activities (e.g., space mining) can be protected via fines and seizure of improperly procured goods once they reach earth. No polar orbit-based beat cops or other space police required!
Although international treaty has long been the primary tool for shaping legal relationships in space, I believe that the United States has the opportunity to unilaterally create a system of recognition and enforcement of private land claims in space and tangible goods derived from space-based activities, like lunar mining, asteroid mining, and space-based manufacturing because of the United States’ status as the largest consumer market in the world and its preeminence in commercial spaceflight activities.
Vestigial intellectual property rights in space exist, but what about general property rights in space? Are there paths forward to enforce space real property rights (land ownership) and personal property rights (iPod ownership, unless it’s a really big iPod) via earth-based actions?
In order to explore these issues, let’s make a few assumptions. Assumption number one: when space is commercially exploited and settled, the United States will be the largest, richest market for space faring firms. Assumption number two: under the current legal regime, or under one hastily installed upon an individual or company seriously laying claim to land or minerals in space, a private ownership right in goods and services sent to earth from space is recognized.
With these assumptions in mind, a near term and long term path for real recognition and enforcement of property rights in space and on other celestial bodies exists. These enforcement mechanisms do not necessarily require a “space police” force in order to enforce those rights.
In celebration of NASA’s amazing, successful landing, check out these Curiosity rover patents! Congratulations to everyone at NASA, JPL, CalTech, Malin Space Science Systems, SwRI, ULA and everyone else involved in making this mission such a success!
Above is US design patent #D505,105 “Skycrane Landing System.” It covers the ornamental design of the celebrated skycrane!