View of PATENT OF SPACE ACTIVITIES UNDER INTELLECTUAL PROPERTY RIGHTS ACT

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VOLUME: 08, Special Issue 04, (ICESD-2021), Paper id-IJIERM-VIII-IV, June 2021

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PATENT OF SPACE ACTIVITIES UNDER INTELLECTUAL PROPERTY RIGHTS ACT

Dr. Arvind Jain¹, Dr. Vandana Jain²

1Department of Physics, St. Paul Institute of Professional Studies, Indore (M.P.) 452001, India

2Department of Commerce, SJHS Gujarati Innovative College of Commerce and Science, Indore (M.P.) 452001, India

Abstract - This paper critically analyzes the space activities in the context of intellectual property. The issues examined, current and future, are at the intersection of the international legal framework for extraterrestrial activities and intellectual property law. The first steps in the analysis include a brief history of space law, the presentation of the United Nations treaty on space activity and an in-depth study of the basic principles embodied.

The second part introduces Intellectual property and its role in the context of space activities and patents. The third part describes role of intellectual property in the area of space activities. The fourth part refers to international conventions relating to intellectual property and outer space. The fifth part illustrates discussion on activities pertaining to outer space and intellectual property right in view of the potential for the future development of a wide range of international commercial activities.

Keywords: Intellectual Property, Outer Space, Patent, IPR.

1 INTRODUCTION

Developing advanced technology to research and explore space requires a huge amount of time and investment in research & development (R&D). This field is full of various intellectual creations, whose fruits would be borne by the entire humanity. To further the advancement, various non-governmental private companies are taking an active interest in this field, this is a shift from the state-owned entities indulging in this field. Since developing these technologies require a lot of investment, collaborations can be seen between private and state-owned companies. With the advent of globalization and development in communications technology, various companies desire to work together in the outer space area by collaborating with sharing their information and technology with each other. In such a situation, when a dispute arises regarding the protection of their property, there is no international regime of laws and institutions to resolve such disputes.

In addition, contractual obligations lie with the parties and not with third party players. Thus, to address issues of ownership and use rights, distribution, confidentiality, etc. around the world, the international regulatory regime is a need of the hour. Another reason for the need for IPRs for outer space is to encourage innovators, researchers and scientists to provide future business opportunities for space technology development. If their intellectual property was protected by appropriate intellectual property laws, it would encourage more people to work in this area. For example, ensuring the protection of ongoing research to create a sustainable habitable environment on Mars.

1.1 Objectives of the Study

1. To know the Role of Intellectual Property and Patent Rights in the area of space activities.

2. To highlights the International conventions relating to intellectual property and outer space.

2 DISCUSSION AND INFERENCES ABOUT PATENT OF SPACE ACTIVITIES UNDER IPR I. A Brief History of Space Law - The Constitution Act in space is the stamp of the United Nations. In 1957, the Soviet Union launched Sputnik, the first man-made object in Earth orbit, thus starting the space race. The United Nations did not sit back because space technology generated interest and surprise, and tried to ensure that the new frontier was not used for its intended purpose military, but in the name of human progress. In 1958, the United Nations created the Office of Foreign Affairs (UNOOSA) to serve as an astronaut at the United Nations Secretariat, the executive organ of the United Nations.

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UNOOSA serves the General Assembly by implementing that decision and promoting intergovernmental cooperation and awareness. In 1959, the General Assembly established another specialized UN agency, the Committee on the Peaceful Use of Outer Space (“COPUOS”). COPUOS, consisting of the Science and Technology Subcommittee and the Legal Subcommittee, is tasked with identifying legal issues related to space and developing programs implemented by the United Nations.

II. Intellectual property and its role in the context of space activities- WIPO is an intergovernmental organization, since 1974 it is one of the 16 specialized agencies of the UN system of organizations. WIPO is responsible for promoting the protection of intellectual property worldwide through cooperation between states and, where appropriate, in cooperation with other international organizations, as well as for compliance with various treaties related to intellectual property. As of February 12, 2004, the number of WIPO Member States was 180. The main activities of WIPO are to establish international norms and standards in the field of intellectual property; administration of treaties that include such norms and standards, as well as treaties facilitating the filing of applications for the protection of inventions, trademarks and industrial designs; and the provision of industrial property information. WIPO also runs a major program of legal and technical assistance to developing countries and countries with economies in transition.

In 1967, the World Intellectual Property Organization (WIPO) defined the term to include rights in: (i) literary, artistic and scientific works; (ii) performances by performers, phonograms and broadcast programs; (iii) inventions in all fields of human activity; (iv) industrial designs; (v) scientific discoveries; (vi) trademarks, service marks, trade names and designations; (vii) protection against unfair competition; and all other rights arising from intellectual activity in the scientific industrial, literary and artistic fields.

2.1 Patents

Patent rights are monopoly rights for the exploitation of an invention and have a duration of 20 years. In the meantime, the inventor has the opportunity to establish himself in the market as the supplier of the invented product or process, and this advantage can be maintained through the effective use of trademark protection and the company's good reputation. Australian patent law derives from the Patents Act 1990 (Cth), which repealed and replaced the old Patent Act 1952. The new law was passed after a review of the patent system by the Advisory Committee on Intellectual Property (IPAC) (IPAC 1984). which concluded that the patent system was flawed, that it may not do much to promote innovation, and that it is quite difficult to manage. But that Australia is obliged to participate in such a system, otherwise our imports of patented machines, drugs and processes would abruptly stop and the protection would continue to trade with us. The report focused on improving the operation of the patent system to maximize benefits and minimize costs. Some of the changes in patent law should reflect international patent trends and standards.

Requirements for a valid patent - Article 18 of the Patent Law establishes the requirements for a patentable invention: (a) it must be an invention, that is, some form of manufacture "; (b) novelty; (c) inventive step; d) useful and (e) Not be a human being or a biological process to create a human being More requirements of a valid patent can be found in Section 40 of the Patent Law.

III. Role of intellectual property in the area of space activities:

Although space technology is still one of the most advanced technical fields, and space activities are in fact the product of intellectual creation, it is only in recent years that attention has been paid to the protection of space. Intellectual property related to space activities. One reason is that space activities are increasingly shifting from government activities to private and commercial activities. These activities include remote sensing from space, live broadcasting, and research and manufacturing in microgravity environments.

Not only is the new involvement of the commercial sector increasing, but also the privatization of companies, such as Inmarsat or Intelsat, is increasing. In general, these non-governmental entities are more aware of their “ownership” in both tangible and

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intangible form. License agreements are concluded between government space agencies, between government agencies and private companies, and between private companies. This private financing must be motivated by the hope that investment in R&D can be recovered in the future. Therefore, the acquisition and protection of intellectual property rights would have a positive effect on the participation of the private sector in the development of space activities and in the further development of space technology in general.

IV. International conventions relating to intellectual property and outer space:

A. International principles concerning intellectual property:

The following are international principles related to intellectual property:

(1) Paris Convention for the Protection of Industrial Property.

(2) Berne Convention for the Protection of Literary and Artistic Works.

(3) WIPO Copyright Treaty (WCT).

(4) The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

B. International principles concerning outer space:

The main body of current international space law is contained in five international agreements:

(1) Treaty on the principles that should govern the activities of States in the exploration and use of outer space, including the Moon and other celestial bodies (Outer Space Treaty of 1967);

(2) Agreement on the Rescue of Astronauts, the return of Astronauts and the return of objects launched into Outer Space (1968 Rescue Agreement);

(3) Convention on International Liability for the Damage Caused by Space Objects (1972 Liability Conventions);

(4) Convention on registration of Objects Launched into Outer Space (1975 Registration Convention); and

(5) Agreement Concerning the Activities of States on the Moon and Other Celestial Bodies (1979 Agreement on the Moon).

None of these agreements contain provisions directly related to intellectual property.

V. Discussion on activities pertaining to outer space and intellectual property rights:

In 1997, WIPO, assisted by consultants from Europe, Japan and the United States of America, undertook a study on the possible need for standards and principles for the protection of industrial property, in particular inventions. that they create or used in outer space. The debate focused exclusively on questions of international industrial property law.

More general questions of international law, such as the question of territory and jurisdiction, legal questions relating to joint activities between countries navigating in space and legal questions which arise between the space agency, the region and its member States, were not examined.

The consultants raised, in particular, the following issues:

(a) Clarification on the principle of article 5ter of the Paris Convention.

(b) Whether Member States of WIPO should clarify that the laws applicable to inventions in the territory of a country will also apply in the spacecraft registered by (under jurisdiction of) the said country.

(c) Standardization of contractual clauses on the protection of inventions and confidential information, which are created or used in international cooperative agreements between the space faring nations.

However, the study concluded that at present it is not necessary to have specific international legal provisions concerning the protection of inventions created or used in outer space, but it is desirable that the International Bureau of WIPO provides information on the existing protection of these inventions to interested States and organizations.

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3 IMPLICATIONS

The World Commission on the Ethics of Scientific Knowledge and Technology (COMEST), which is an advisory body to the United Nations Educational, Scientific and Cultural Organization (UNESCO), considered issues related to the ethics of space activities and adopted recommendations at its second session from 17 to December 19, 2001. COMEST believes that any space policy should be based on the concept of mutual and mutual advantages while maintaining fair competition and the principle of return on investment.

He stresses the importance of the role that ethics should play in the selection of a particular project and its long-term assessment in terms of human security and economic criteria.

Technological and scientific progress in the field of extraterrestrial space for the purpose of studying, analyzing and applying the extraterrestrial environment is not a new concept. Never again has the issue of intellectual property rights governing these developments been highlighted very recently, as these developments have become more of a private or profitable business than a government-run activity. The rights and protection of new products are essential to its future growth and success. As the world realizes the importance of these guarantees, the demand for them has increased.

4 CONCLUSION

Attention can no longer be focused on the development of an international regime to govern intellectual property laws in outer space. The regime should address issues related to the applicability of intellectual property laws to outer space, the enforcement of rights, the resolution of disputes in the event of a dispute between parties launching a space object or conducting research, the harmonization of intellectual property laws with other international laws and moral standards. Obligations and property and rights. While it is difficult to predict the future, it is very likely that the protection of intellectual property will become a key factor in creating an institutional and regulatory environment conducive to the development of space activities in the future.

However, the main obstacle to the harmonization of space law and intellectual property rights is that space law is part of international law and therefore is uniform and the same for all countries, while each country has its own intellectual property regime.

There is no legal certainty and a single unified law in the field of intellectual property rights in space. With the law comes an enforcement mechanism, which is also currently lacking in relation to issues of intellectual property rights in space.

REFERENCES

1. International Bureau of World Intellectual Property Organization, (2004), International Property and Space Activities,4. https://www.wipo.int/export/sites/www/patent-law/en/developm ents/pdf/ip_space.pdf

2. World Intellectual property Organization, (2003) what is intellectual property,23.

3. https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf.

4. Convention Establishing the World Intellectual Property Organization art. 28, July 14, 1967, 21.

5. Elizabeth Howell, (Aug. 22, 2018) Sputnik: The Space Race’s Opening Shot, SPACE.COM.

https://www.space.com/17563-sputnik.html.

6. Roles and Responsibilities, U.N. OFF. FOR OUTER SPACE AFF.

http://www.unoosa.org/oosa/en/aboutus/roles-responsibilities.html.

7. Committee on the Peaceful Uses of Outer Space (2019), U.N. OFF. FOR OUTER SPACE AFF.

http://www/unoosa.org/oosa/en/ourwork/copuos/index.htm.

8. Space Law Treaties and Principles, U.N. OFF. FOR OUTER SPACE AFF.

http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.

9. Industrial Property Advisory Committee (1984): Patents, Innovations and Competition in Australia.

Canberra: Australian Government Printing Service.

10. U.N. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, art. 2, Jan. 26, 1967, 610 U.N.T.S. 8843.

11. G.A. Res. 2345 (XXII), annex, Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Dec. 17, 1967).

12. G.A. Res. 2777 (XXVI), (Nov. 29, 1971) annex, Convention on International Liability for Damage Caused by Space Objects.

13. G.A. Res. 3235 (XXIX), (Nov. 12, 1974) annex, Convention on Registration of Objects Launched into Outer Space.

14. G.A. Res. 34/68, (Dec. 5, 1979) annex, Agreement Governing the Activities of States on the Moon and Other Celestial Bodies.

15. McKeough J and. Stewart A (1996): Intellectual Property in Australia.

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16. Timothy G. Nelson, (2011), The Moon Agreement and Private Enterprise: Lessons from Investment Law, 17 ILSA J. INT’L & COMP. L. 393, 402. http://www.thespacereview.com/article/1954/1.