Partner
With the growing commercial and tourism use of space, there are some intriguing questions about how patent, trademark and copyright law will apply with respect to intellectual property created and used in space.
For now, legal issues are nonexistent (or only theoretical) on the creative side. A patentable invention created in space — which is actually becoming somewhat common — can be patented by the owners on the surface. Indeed, this issue has been covered by the Patents in Space Act enacted in 1990. See 35 U.S.C. § 105. The Patents in Space Act states that “[a]ny invention made, used or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States for the purposes of this title …” There are a couple of exceptions involving international treaties and involving craft or objects registered to other nations under the relevant international treaty.
With respect to copyrights, legal protections come into being when the original work of authorship is created and do not depend on the location of the creation. Registration of copyrights is also a non-issue since the owner can register the copyright upon return to the surface.
The same can be said for trademarks created in space, although interesting theoretical questions are raised by a trademark that is USED exclusively in space. In the United States, one requirement for registering a trademark is that the trademark be used in interstate commerce. Further, to be registered and legally protected in the United States, a mark must function as a trademark. That is, the trademark must be seen by consumers and be understood as an identifier for a commercial source of products or services. A trademark used exclusively in space would fail these various requirements. Of course, this is theoretical since, for now, there are no goods or services provided in space and no customers.
On the use of intellectual property in space, the legal issues are also minor for now. Under international treaties, such as the Outer Space Treaty of 1967, spacecraft and vessels are treated in a manner similar to ocean and sea-going vessels. That is, spacecraft, satellites and the like are registered to particular owners and are deemed to have the nationality of the owners. Thus, those countries retain jurisdiction over the spacecraft or other objects sent into space. Thus, legal protections afforded copyrights and trademarks would follow that corpus of law and, since the owners of spacecraft and objects are Earth-side, such owners could be brought into the relevant courts as defendants for adjudication of infringement claims.
What was once entirely theoretical is becoming practical faster than the legal system anticipated. SpaceX, Blue Origin, Virgin Galactic, and dozens of smaller companies are actively commercializing access to space. Research conducted aboard the International Space Station routinely produces patentable results. Commercial satellite operators transmit copyrighted content. Space tourism ventures will eventually need trademarks that function in orbital environments. Understanding how existing IP law applies — and where it falls short — is no longer an academic exercise.
35 U.S.C. § 105 extends US patent jurisdiction to inventions made, used, or sold on US-registered space objects. This covers NASA facilities, US commercial spacecraft, and payloads aboard the ISS that are under US jurisdiction. However, the statute has meaningful limitations. The ISS itself is a joint project of the United States, Russia, Europe, Japan, and Canada. Each partner nation retains jurisdiction over its own registered module. An invention made or used in a non-US module could fall under the patent law of a different jurisdiction, creating potential gaps and conflicts. As private space stations and lunar outposts are developed, these jurisdictional questions will become increasingly concrete.
Additionally, the Patent Cooperation Treaty (PCT) — the primary international mechanism for seeking patent protection across multiple countries simultaneously — was written with terrestrial commerce in mind. A PCT application designates the member states where patent protection is sought, but “outer space” is not a PCT member state. As a practical matter, patent holders seeking protection for space-based inventions must rely on the domestic laws of the countries that operate the spacecraft or facilities where infringement is alleged.
Copyright protection attaches automatically upon creation of an original work of authorship, regardless of location. A photograph taken from the ISS, a musical composition written during a six-month mission, or software code developed in orbit is protected by copyright from the moment of creation. The author’s nationality and the nationality of the spacecraft’s operator both potentially determine which country’s copyright law governs. Under the Berne Convention — the primary international copyright treaty with nearly universal membership — works created by nationals of member countries receive automatic protection in all other member countries without registration.
Work-for-hire doctrine adds a layer of complexity for commercial space ventures. If a NASA contractor employee creates a copyrightable work in the course of employment, that work belongs to the employer under 17 U.S.C. § 101. Private space company employees and contractors should expect their employment agreements to contain comprehensive IP assignment clauses covering any creative or inventive work done in connection with their missions — including work done in orbit.
Trade secret protection may be the most robust form of IP protection for space-based innovations, particularly for commercial ventures that want to maintain competitive advantages without the public disclosure required by the patent system. Under the Defend Trade Secrets Act (DTSA), 18 U.S.C. § 1836, trade secrets relating to products or services used in or intended for use in interstate or foreign commerce are protected. Space-based commercial activities — satellite communications, data services, in-orbit manufacturing — would easily satisfy the commerce nexus requirement. The challenge is enforcement: if a foreign-based company misappropriates a trade secret used in a US-registered spacecraft, the DTSA’s reach to compel foreign defendants to appear in US courts remains an open question.
As commercial space activity accelerates, several legal developments are likely:
Revision Legal’s intellectual property attorneys advise clients at the forefront of emerging technology sectors, including the commercial space industry. Whether you need help protecting a space-related invention, navigating IP ownership in a space venture, or counseling on IP assignment agreements for space missions, contact us today.
Registering a trademark is one of the smartest investments you can make as a business owner. A trademark protects your brand, gives you exclusive rights to use your mark in commerce, and provides significant legal advantages — including a presumption of ownership and the ability to bring infringement claims in federal court. But many business […]
Read more about Six Important Trademark Questions Answered
The USPTO’s failure-to-function doctrine rejects trademarks that don’t identify a unique source. Learn what causes these refusals, why distinctiveness matters, and how to choose a stronger mark.
Read more about Trademark Failure to Function: Why the USPTO Rejects Trademarks and How to Avoid It
If another business has registered your trademark, you may still have legal options. Learn how first-to-use rights, USPTO oppositions, and common law claims can protect your brand.
Read more about Trademark Already Registered by Someone Else? Your Legal Options