Protecting Intellectual Property in Orbital Debris

The growing commercial space presence has created new and unique issues. Many of those problems involve orbital debris. Not only does orbital debris create potentially life-threatening issues, but it has created several untested legal issues as well. Throw in intellectual property and suddenly orbital debris becomes a high stakes legal issue. This article addresses whether intellectual property on orbital debris is protectable.

What is orbital debris?

According to NASA, orbital debris consists of human made objects in earth’s orbit, that no longer serve a purpose.[1] Examples include derelict spacecrafts, abandoned launch stages, non-operable satellites, and fragments of human made space objects.[2] This is different compared to space debris, which includes naturally occurring debris like meteoroids.[3] The amount of orbital debris around Earth has exploded as the number of space object launches has rapidly increased in recent years.[4] As of 2021, the Department of Defense has tracked over 27,000 pieces of orbital debris in orbit.[5] The actual number is even more staggering, as only objects greater than 10 cm in length are tracked.[6] Each piece of orbital debris poses a danger to other space objects and has to be maneuvered around.[7] If orbital debris does collide with other space objects, it can destroy that object and create even more debris.[8] An example of this happened in 2009, as a defunct Russian satellite, Cosmos 2251, collided with an operating US satellite, Iridium 33.[9] The collision created more than 1,800 additional pieces of orbital debris.[10]

The Relationship between Orbital Debris and Intellectual Property

Clearly, orbital debris is a growing problem on its own. However, issues with orbital debris become more pronounced when including intellectual property. Intellectual property cases tend to be high stakes. In 2020 alone, U.S. Courts awarded over $4 billion in damages for patent infringement cases.[11] Each piece of orbital debris may contain intellectual property that is no longer in direct control by anyone. This poses a unique risk to the owners of the intellectual property. Depending on what happens to the orbital debris, there may be a level of infringement that has never been seen before. Consider the following scenario. Someone scavenges a piece of orbital debris containing a valuable technology with a patent on it, then uses that technology without permission from the patent owner. What recourse does the patent owner have? Additionally, orbital debris may enter a decaying orbit and fall from space. If the orbital debris survives, there is a chance the intellectual property in the debris exists in a country the intellectual property was never intended to appear in. This would create a situation where the intellectual property owner’s rights could seemingly be violated. These are just some of the possible examples of the intellectual property issues that orbital debris creates.

Space Treaties

Intellectual property issues are legal issues. Legal issues in space were addressed by the U.N. in drafting a series of space treaties. Two treaties that provide guidance to intellectual property issues are The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, otherwise known as the Outer Space Treaty (OST), and The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, also known as the Astronaut Rescue and Return Agreement (ARRA).

The OST lines out important elements to figure out intellectual property disputes in space. One of the most important sections deals with jurisdiction. Jurisdiction is incredibly important to the analysis of intellectual property rights in space. This is, in part, because space does not have its own jurisdiction. Space must rely on terrestrial jurisdictions to settle intellectual property disputes. And different jurisdictions have different intellectual property rights. Thus, it is important to nail down the correct jurisdiction that would govern the intellectual property rights in question. Article VIII of the OST defines the governing jurisdiction of space objects.[12] Once the object is registered to a state, the object is under the jurisdiction of that State.[13] A related treaty, the Registration Convention, explains that only Launching States can register a space objects.[14] Launching States are defined to be States that procure the launch of the space object, or are the State in control of the territory the launch occurs.[15] Thus, one of the Launching States will be the controlling jurisdiction of the space object.

Another important aspect in dealing with intellectual property disputes is possession. Article VIII of the OST expressly states that space objects found outside of the registering state’s territory are to be returned to the registered state.[16] This practice is more explicitly stated in ARRA. Article 5 of ARRA includes three provisions which essentially state that a contracting party to ARRA must (1) inform the launching authority that they found their space object in their territory, in international waters, or in outer space, (2) take reasonable steps to recover said property if requested upon by the launching authority, and (3) return the property to the launching authority.[17] A launching authority is defined as the state responsible for launching the space object.[18] Since multiple States may be responsible for launching a space object, there are potentially multiple launching authorities.[19] However, ARRA requires compliance with the OST.[20] Thus, while under ARRA, space objects must be returned to a launching authority if requested, the OST still requires that it needs to be returned to the registering state.[21]

How does this affect intellectual property contained in the orbital debris?

The treaties provide some framework that would give some protection to intellectual property used in space. The treaties established two very important pieces needed to analyze intellectual property disputes in space. The first is that orbital debris is in the jurisdiction of the registered state. The second is that if collected by a different state, the orbital debris should be returned to the registered state.

As mentioned before, figuring out the jurisdiction greatly contributes to solving any disputes with regards to intellectual property. Nothing in the OST or ARRA defines orbital debris differently from space objects. In fact, the OST is silent to duration of jurisdiction after a State has registered a space object. In effect, this means that once a space object is registered to a State, the State will maintain jurisdiction even after the object turns into orbital debris. Even in extreme cases where orbital debris may be composed of fractured pieces of space objects, the fractured pieces may be considered components of the original space object and orbital debris remains within the jurisdiction of the registered State. Thus, orbital debris is within the jurisdiction of the registered State of the space object where it originated from.

Similarly, ARRA does not make any specific distinction with regards to orbital debris. The conditions of ARRA apply to any space objects found outside of a contracting state’s territory or international waters on Earth, or in outer space, a definition that fits orbital debris. Therefore, orbital debris is subject to ARRA and must be returned to the registering state. This would mean that scavenged orbital debris, or orbital debris that fell into another country must return the orbital debris to the country of registry.

Unresolved Issues

There is a caveat to all of this, though. International treaties are only binding to the States that have agreed to the treaty, unless there is an argument to make the treaty customary international law. Whether this has happened with the space treaties that affect intellectual property disputes is debatable at best. Therefore, orbital debris originating from States not party to the OST, Registration Convention, and ARRA, would be left without a means of protecting the intellectual property contained within.

Another problem with the jurisdictional issue is the reliance on being able to determine the registered state of the orbital debris. Determining the registered State of orbital debris can be challenging, especially when considering that the debris might only be a fragment of a registered space object and that the registered State may lose track of the debris. This would effectively make the jurisdiction impossible to determine, which would lead to an impossible infringement analysis of intellectual property.

Conclusion

Like in many other legal issues, protection of intellectual property in orbital debris depends on the facts. There are laws in place that provide a framework for legal disputes. The OST and Registration Convention settle jurisdiction. ARRA settles possession. These are parts required to resolve intellectual property issues. This means that intellectual property contained in orbital debris from registered States party to all the relevant space treaties do have an avenue for protection. There are clear legal means to pursue if infringement occurs if all those requirements are met. But, the framework is not without its gaps. Only orbital debris that is traceable to a registered State will receive such protection. Orbital debris that originates from a State not party to the treaties, or debris that is untraceable, does not have clear protection for the intellectual property contained. This is a challenge that the evolving world of space law has yet to answer.

[1] https://www.nasa.gov/mission_pages/station/news/orbital_debris.html

[2] Id.

[3] Id.

[4] https://www.orbitaldebris.jsc.nasa.gov/modeling/

[5] https://www.nasa.gov/mission_pages/station/news/orbital_debris.html

[6] Id.

[7] Id.

[8] Id.

[9] https://ntrs.nasa.gov/citations/20100002023

[10] Id.

[11] https://www.copperpodip.com/post/how-much-does-patent-litigation-cost#:~:text=Patent%20litigation%20costs%20between%20%242.3%20million%20and%20%244%20million%20on%20average.&text=It%20takes%20one%20to%20three,patent%20case%20to%20reach%20trial.&text=Patent%20infringement%20lawsuits%20are%20settled,to%2097%20percent%20of%20cases.

[12] The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, art. viii, Oct. 10. 1967, 861 U.N.T.S. 187 [hereinafter Outer Space Treaty].

[13] Id.

[14] Convention on Registration of Objects Launched into Outer Space, art. i, Sept. 15 1976, 1023 U.N.T.S. 15 [hereinafter Registration Convention].

[15] Id.

[16] Outer Space Treaty, supra note 12, at art. viii.

[17] The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, art. v, Dec. 3, 1968, 672 U.N.T.S. 119 [hereinafter ARRA].

[18] Id.

[19] Id.

[20] Id. at Gen. Assemb.

[21] Outer Space Treaty, supra note 12, at art. viii.