They Came From Earth IP Rights in Outer Space – JD Supra

Sixty-two years ago today, on May 15, 1958, the Soviet Union launched the Sputnik 3 satellite from a spaceport in Kazakhstan with a mission to conduct geophysical research of the upper atmosphere and near space.[1] Although an extraordinary step toward exploration and understanding of space at the time, its launch was not as ground-breaking as that of its predecessor Sputnik 1, the first artificial satellite to orbit Earth.[2] Weighing in at just 183.9 pounds[3], less than heavyweight boxers of the day, Sputnik 1 nonetheless punched well above its weight class by setting in motion many defining events in politics, science and the law: the Space Race[4], the National Aeronautics and Space Act of 1958[5], and the creation of National Aeronautics and Space Administration (NASA).[6]

The National Aeronautics and Space Act of 1958 (Space Act of 1958) was drafted by the United States House Select Committee on Astronautics and Space Exploration and was signed into law by President Eisenhower on July 29, 1958.[7] The Space Act of 1958 charged NASA with planning, directing, and conducting the aeronautical and space activities of the United States.[8]

Section 305 of the Space Act of 1958 titled, Property Rights in Inventions made extensive modifications to patent law and provided that both employee inventions, as well as private government contractor innovations, may be subject to government ownership.[9]

The Space Act of 1958 is now codified in Title 51 of the U.S. Code titled, National and Commercial Space Programs. Specifically, 51 U.S.C. 20102 provides that the aeronautical and space activities shall be conducted so as to contribute materially to one or more of the following objectives:

51 U.S.C. 20102.

Section 20135 of 51 U.S. Code, which is directed to intellectual property rights in inventions, remains largely unchanged from the Space Act of 1958 and grants the same broad authority of ownership to the government over both employee inventions as well as private government contractor innovations.

In particular, 51 U.S.C 20135 provides that an invention shall be the exclusive property of the United States if it is made in the performance of any work under any contract of NASA and if NASA determines that

51 U.S.C. 20135.

These provisions and NASAs authority to enter into contracts with third parties under 51U.S.C. 20113 can pose challenging issues of ownership and enforcement for those who wish to commercialize their space technology-related inventions.

We will explore these and other issues in our upcoming posts but for now we leave you with a suggestion to listen to Chris Hadfields poignant cover of David Bowies Space Oddity[10] while on board the International Space Station featuring out of this world shots of Earth.

[1] Melanie Whiting, 60 years ago, Soviets launch Sputnik 3 (May 15, 2018), https://www.nasa.gov/feature/60-years-ago-soviets-launch-sputnik-3.

[2] Steve Garber, Sputnik and the Dawn of the Space Age (October 10, 2007), https://history.nasa.gov/sputnik/.

[3] Id.

[4] Id.

[5] Steven J. Dick, Why We Explore (March 28, 2008), https://www.nasa.gov/exploration/whyweexplore/Why_We_29.html [hereinafter Why We Explore].

[6] Id.

[7] Why We Explore, supra n.5.

[8] NASA, National Aeronautics and Space Act of 1958 (Unamended) (July 29, 1958) https://history.nasa.gov/spaceact.html

[9] Id.

[10] Chris Hadfield, Space Oddity https://chrishadfield.ca/space-oddity/ (last visited May 7, 2020).

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They Came From Earth IP Rights in Outer Space - JD Supra

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