The intellectual property in the space race, Apollo moon landings and Artemis missions

With the Artemis space missions planned to take the human race back to the Moon and on to Mars, it is a perfect opportunity to look at the intellectual property that NASA has developed. This technology has been used not only for the Moon missions, but also here on planet Earth, with many of the patentable inventions developed during the Apollo programme being essential for modern life. From integrated circuits to GPS the world has transformed thanks to NASA missions and the space race, as well as its unique approach to intellectual property rights.

Artemis

The Artemis missions will involve a new Orion spacecraft, a new look Space Launch System Rocket, the Gateway which will orbit the lunar surface, a new Human Landing System and an Artemis Base Camp. All of these technologies are a brand new way to carry out space exploration, benefiting for past NASA programmes and intellectual property has been at the heart of the innovation required. Perhaps surprisingly NASA has quite a unique approach when it comes to such valuable intellectual property.

NASA Intellectual Property Rights

NASA has been responsible for some of the most important innovation in modern history. It is hard to imagine a world without GPS or integrated circuits, but NASA has also been responsible for improved osteoporosis treatments and the first industrial strength robotic glove.

But not only has NASA been involved in the development of all this technology, it has also made it available so that other businesses (and mankind) can benefit from it. It is estimated that two thousand NASA technologies have been spun out into products and services.

The Technology Transfer portal is here:

NASA Technology Transfer Portal Home

Through this link you will find NASA’s patent portfolio (which includes many industries, from robotics, to aerospace, to medicine and biotech). There is also a software catalogue and an explanation on how to license IP from NASA. Licences range from $0 for a start up licence to $50,000 for an exclusive licence to utilise NASA tech.

NASA also publishes the spinoff success stories in its annual publication:

Home | NASA Spinoff

The NASA logo

NASA also has extensive guidelines over the use of its logo. The guidelines include the following:

Companies interested in producing NASA-related merchandise must notify NASA’s Office of Communications at NASA Headquarters in writing by sending e-mail to merchandise@lists.nasa.gov . Requests should describe the intended use of NASA identifiers, emblems, devices, or imagery on the product. If possible, detailed layouts or sketches of the product should be included. When all legal and policy requirements have been met, NASA will send the merchandiser an approval by e-mail.

In particular, NASA identifiers, emblems, devices, imagery, etc. can be used as decoration on the product, but should not be used in a manner that suggests “co-branding” of products. Therefore, anyone thinking of using the NASA branding should make to avoid any questions of collaboration.

Interestingly, NASA explicitly states in relation to NFTs:

NASA is not approving any merchandising applications involving Non-Fungible Tokens (NFTs), as they are not consistent with the categories of products the Agency is approved to merchandise.  Further, as stated in the NASA Media Usage Guidelines, NASA does not wish for its images to be used in connection with NFTs.

For an in-depth look at how you can use the NASA logo, please take a look at this article from The Fashion Law – https://www.thefashionlaw.com/almost-anyone-can-use-nasa-trademarks-just-dont-call-it-a-collaboration/

Mission Patches

It is well known that the mission patches used by astronauts are designed by the mission crew. This is a good opportunity to mention joint authorship and co-creation of intellectual property rights. Copyright is likely to subsist in the design of any mission patch and joint authorship can arise in the event that certain criteria are met (as set out in the Court of Appeal decision in Kogan v Martin). These include, the requirement of collaboration by the people who created it, the need for common design, and the inability to separate each contribution (also known as the purple paint test).

Jurisdiction of outer space

Anyone interested in space will have seen Armageddon. There is a scene when Bruce Willis’ character complains to Nasa that they have ripped off his drill design and he asks if they had busted in to the US patent office.

Now Bruce Willis’ character says that NASA have not read the plans right, but any patent attorney would say that the patent application must be drafted with sufficient precision in order to enable a person skilled in the art to perform the invention. A patent may be invalid for insufficiency if it is not capable of performance based on the documents submitted in the application. However a greater IP point is raised in this scene – do patents apply to outer space?

Patents are jurisdictional in nature. If you have a patent in the UK it is enforceable in the UK only. This is why it is important to have patent portfolios which cover important jurisdictions. That said, what happens when the invention is used on the Moon or at the international space station?

Well the US Patent Act (35 U.S.C.§ 105) states that any invention made, used or sold in outer space on board a spacecraft that is under the jurisdiction or control of the US is considered to be made, used or sold on US territory.

Businesses developing technology for the international space station, or the Artemis programme should consider the implications of jurisdiction for the patentable inventions they create

To infinity and beyond

The space sector, with its gargantuan level of innovation, has intellectual property issues all over. We haven’t even mentioned who owns the copyright in the images produced by the James Webb telescope! Understanding the basics is a small step for any business, but a giant leap when it comes to adding value.

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