In the first part, the focus was on the legal framework governing patent protection for State-registered spacecraft. The legal assessment becomes far more difficult when an invention arises within complex, multinational or commercially operated space infrastructures – for example, during extravehicular activities, on private space stations or in future orbital production facilities. In principle, such facilities remain subject to a national legal system through registration and State supervision. However, in light of cross-border operational and usage structures the construct of quasi-territoriality is increasingly losing its practical clarity. Specific questions of attribution may arise in the context of extravehicular activities, as the inventive activity cannot readily be spatially attributed to a specific registered space object (e.g. a spacecraft).
Under current space law, future orbital production facilities on celestial bodies would, in principle, also be attributable to a State and subject to its supervision. Nevertheless, the question arises as to whether the traditional link via registration and jurisdiction offers a sufficient basis in the long term for the attribution of intellectual property matters in the case of highly autonomous space infrastructures.
Irrespective of these issues of attribution under space law, patent law is governed by the territoriality and country-of-protection principles. According to these principles, the patentability of an invention is, in principle, determined by the law of the State within whose territory patent protection is claimed. The place of invention, on the other hand, is generally irrelevant to the question of whether protection is granted. For non-contractual claims arising from the infringement of intellectual property rights, this principle is expressly confirmed in European conflict-of-laws rules by Article 8 (1) Rome II Regulation.
The inventor may therefore apply for patent protection in the State in which the protection is to take effect. German patent law may therefore also apply to inventions made outside German territory or in outer space, provided that protection for Germany is claimed by filing an application with the German Patent and Trade Mark Office (DPMA). The decisive factor is not the place of invention or application, but solely the territory for which protection is claimed. A patent application filed with the DPMA is therefore subject to German patent law, regardless of whether the underlying invention was completed in Düsseldorf, on a celestial body or in outer space.
Patent protection on the ISS: Which law applies on space stations?
Multinational space stations, such as the International Space Station (ISS), consist of modules, each of which is registered separately by the participating States. Each of these States exercises sovereign authority over its modules. Under the ISS Intergovernmental Agreement (IGA), a specific regime under international law has been established for this purpose, which sets out binding provisions on cooperation and the division of responsibilities between the partners: The station is subdivided into national modules, each of which is governed by the law of the partner State that provided the module in question. This results in a fragmented mosaic of sovereign powers within a unified technical infrastructure in space.
Specifically, this means:
- German law – including German patent law – applies to a module provided by the ESA or by Germany under the same conditions as it does to a national spacecraft.
- An invention made, for example, in the US segment of the ISS is not automatically subject to US law. In the case of a German astronaut, German employee invention law may apply regardless of whether the relevant module is registered in another country, provided that the underlying employment relationship is governed by German law. Irrespective of where the invention was developed, the astronaut remains obliged to report to and pay contributions to their German employer. In addition, further rights or obligations may arise under the law of the module State – such as the USA – for example with regard to the use, exploitation or legal attribution of research results. These "supplementary claims" arise because the module State applies its national legal system to the module it has registered, thereby giving rise to additional rights and obligations which apply alongside the obligations under the German Employee Inventions Act (ArbnErfG). For this reason, careful contractual coordination between the partner States is necessary to avoid potential conflicts and to clearly regulate the application of the law.
- If cross-border acts of use occur within the ISS – for example, where a patented technology is developed in one module but used in another – this gives rise to complex attribution and conflict-of-law issues. These scenarios have thus far only been partially covered by the IGA and may, in individual cases, require a nuanced assessment under conflict-of-laws rules.
This shows that, whilst the concept of quasi-territoriality formally remains in place in multinational missions, it loses its practical clarity in view of the technical, organisational and personnel interdependencies. Whilst privately operated space stations can generally be assigned a clear legal status due to the State registration, authorisation and supervisory obligations of the respective State of registration or launch, complex overlaps in jurisdiction arise in the case of multinational infrastructures such as the ISS due to the involvement of several States. It is precisely here that the need for a harmonised, supranational legal framework becomes particularly evident. By contrast, privately operated space stations are subject to clear registration and control by a single State, which provides a clearer framework for legal attribution and liability.
Patent protection in space: where the law reaches its limits
The legal situation remains unclear in rare scenarios where the protection of an invention relates exclusively to acts carried out in space itself – for example, the unauthorised use of a patented technology by other astronauts on board a space station, without any use or exploitation taking place within a national territory. There is currently no definitive regulation governing such purely "extraterrestrial" disputes. There is as yet no internationally codified patent law applicable beyond national territories that would be comparable to the regulations governing world trade law or international aviation.
Current legal doctrine assumes that the primary need for patent protection continues to lie in use and commercial exploitation on Earth. However, it seems increasingly questionable whether this assumption will hold true in a future featuring commercial space stations, orbital factories and the extraction of extraterrestrial raw materials.
International rules on patent protection in space
In addition to the 1967 Outer Space Treaty (OST), a number of other international regulations and initiatives have emerged that could influence the protection of intellectual property in space, though so far without a uniform or binding framework.
The Moon Treaty of 1979
The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty, 1979) declares outer space, and in particular the moon and other celestial bodies, to be the "common heritage of mankind". However, the treaty does not contain any specific provisions on the protection of intellectual property. Furthermore, its practical relevance is severely limited, as it has not been ratified by the major spacefaring nations – including the USA, Russia, China and Germany.
International patent agreements: WIPO, the PCT and European developments
The international conventions of the World Intellectual Property Organisation (WIPO) and the Patent Cooperation Treaty (PCT) facilitate the cross-border filing and harmonisation of patents. However, they remain expressly bound by national territorial legal systems and contain no special provisions for inventions in space.
The European Space Agency (ESA) and the European Patent Office (EPO) have not yet established any specific provisions governing the patent protection of inventions in orbit or on celestial bodies either. Although they support technology transfer and innovation programmes, there are no sector-specific provisions for space.
The US's unique approach: 35 U.S.C section 105 and the SPACE Act
With 35 U.S.C. section 105, the USA has created an explicit connecting factor under patent law. Under this provision, inventions made on US-registered spacecraft are deemed to have been "made in the United States" and are subject to US patent law. Other States also exercise jurisdiction over their registered spacecraft under space law. However, the provision is distinguished by its explicit statutory formulation within patent law. Furthermore, the Commercial Space Launch Competitiveness Act (SPACE Act of 2015) allows private US companies to acquire and commercially exploit extraterrestrial resources they have obtained from space – a unilateral national initiative that is controversial under international law and is viewed by some as contradicting the principle of non-appropriation of outer space under Article II OST.
National legal developments: Amendments to patent law in Germany
At national level, Germany has not yet introduced any explicit statutory provisions governing patent protection in space. The German Patent Act (PatG) and the associated provisions continue to assume purely territorial applicability and do not contain any specific requirements. Nevertheless, the prevailing legal view – in conjunction with Article VIII OST – could provide a workable basis for the application of German patent law to registered space objects. Furthermore, there are growing calls in academic discourse and at the political level to adapt patent law with a view to future space activities. The introduction of clear statutory provisions on the application and enforcement of law on spacecraft, as well as the clarification of the legal consequences of infringements in space, are considered necessary to create legal certainty for German companies and research institutions.
Legal challenges: Do we need a space patent law?
The current legal situation reveals a significant discrepancy between the rapid pace of technological development in the field of space utilisation and the existing, territorially based legal framework. Under international law, outer space is considered to be stateless, meaning that conventional territorial-based legal principles are only applicable to a limited extent. At the same time, there is a lack of supranational institutions for the protection of intellectual property and the effective resolution of disputes in orbital space. This results in a fragmented legal framework that fails to adequately address either the need to protect inventors' interests or the specific circumstances of outer space.
With the increasing commercialisation of space – whether through orbital mining on asteroids, industrial manufacturing in zero gravity or the emerging space tourism industry – there is a growing need for a globally binding framework governing patent protection in space. Various possible solutions are therefore being discussed among experts and at a political level, including:
- The development of an international "Space IP Treaty", comparable to the TRIPS Agreement of the World Trade Organisation, which sets out binding minimum standards for patent protection in space.
- The establishment of a specialised space arbitration tribunal to act as a neutral body responsible for resolving disputes concerning intellectual property in space.
- The introduction of a uniform registration obligation for space objects, which is to apply to inventions in space that are relevant under patent law, thereby ensuring clarity regarding jurisdiction and the application of the law.
Although Article VIII OST in principle allows for the application of national law to registered spacecraft, this mechanism is insufficient to ensure reliable protection given the complex nature of commercial space activities. The current lack of international coherence and effective enforcement mechanisms creates legal uncertainties that are no longer tenable in an increasingly commercialised space sector.
Germany faces both a challenge and an opportunity to adapt its national patent law with a view to the future and to play an active role in shaping a coherent framework under international law. Only through such a dual strategy can legal certainty, the protection of innovation and a fair, sustainable framework be guaranteed in a newly emerging economic area.
The protection of intellectual property in space is therefore no longer an abstract issue for the future, but a concrete and urgent task – both for the innovative strength of German companies and research institutions, and for international cooperation and peaceful competition in orbit.
