Tuesday, 24 November 2015

The Longest Manned Mission – 15 years of Celebration

Image Source: http://www.theatlantic.com/magazine/archive/2015/01/5200-days-in-space/383510/

The International Space Station which was launched into the Low Earth Orbit way back in 1988 has seen continuous human occupation only since November, 2000. This month, the ISS completed its 15 years of continuous human presence in the outer space. Over the past 15 years, the ISS has hosted more than 200 people from about 15 countries.  Apart from playing the host to longest continued human presence, the ISS has also seen the commendable joint efforts of the five Space agencies: NASA, ROSCOSMOS, ESA, CSA and JAXA.

Fig 1. The Space Station has been a gracious host.2

NASA admits that “ISS is as much a human achievement as it is a technological one”.3 The ISS Agreement signed by the participating nations on January 29, 1998 stands a testament to the commitment, openness and collaborative intent of the agencies to create a singular, unique technological front for the greater good, advancement. It is for each agency to maintain and run the hardware that the component it provides to the space station as established under the agreement.  

As discussed in the earlier writings, over the years, the laws regulating the outer space have come to include and acknowledge the roles played by the private commercial entities in the domain. SpaceX has come to become a prominent player in the industry, and has bagged various NASA contracts made in furtherance of the agency’s commitment to the ISS. It very recently got its first contract to provide transport to a team of astronauts to the ISS in 2017.4 A similar contract was awarded to Boeing, as part of a series of 4 orders NASA is to execute under the commercial crew transportation capability contracts. As we grow familiar with a string of contracts being executed between the government agency and the private entities, it is for the laws to be replicated around the world, for increased efficiency and cost reduction. 

Interestingly, as we grow to understand the debated concept of the “common heritage of mankind”, we see the subtle hint of rebel in fields like, space archaeology. Is it not for us to preserve what we have now, for the future generations? It is a well known fact that one of the winning excuses for the space faring nations to not ratify the Moon Treaty, is this very principle being harbored by the agreement. 

A plain reading of the provision of the Moon Treaty, gives the impression of the principle seeking to protect, respect, and meet the interests of human beings independent of any political/sovereign motivation. The five components5 of this principle are:

  •  No private or public appropriation;
  •  All representatives must manage resources of such commons area;
  •  Active sharing of benefits stemming from commons region;
  •  No weaponry or military installations in commons area; and,
  •  Preservation of commons for future generation

Over the years there have been demands of a supranational organization for the management of the natural resources in the outer space, yet we have come to address the issues of outer space utilization; manage; and, succeed with multination coordination (co-operation of space programs, the case of ISS).  Now with the major participation of commercial entities, appropriation for private gain stands as a very controversial objective. 

To think of it, where the commercial entities have been blatantly targeted under the principle, is it justifiable to forbid them? Are the established principles of international law, such as consent based sources of international law, sovereignty5  enough to bring in the distinction? Was it not the great philosopher Friedrich Engels who once said, “freedom is the recognition of necessity” 7 ? It is time that we bring in strict terms of law unifying all the overlapping principles, to bring out clarity. Now that we are 15 years into celebrating the undaunted human spirit, we need to strive harder.

Author: Ms. Bagmisikha Puhan (Associate)
TMT Law Practice
Email: b.puhan@tmtlaw.co.in
website: www.tmtlaw.co.in

  1. http://www.nasa.gov/mission_pages/station/main/onthestation/facts_and_figures.html   
  2. Ibid.  
  3. http://www.nasa.gov/mission_pages/station/cooperation/index.html
  4. http://timesofindia.indiatimes.com/home/science/SpaceX-gets-first-Nasa-offer-to-ferry-astronauts-to-ISS/articleshow/49900809.cms 
  5. Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will Developed and Developing Nations Reach a Compromise?”, 21 WILJ 409, (2003). 
  6. https://en.wikipedia.org/wiki/Common_heritage_of_mankind
  7. Garrett Hardin, The Tragedy of the Commons, December 1968

Monday, 29 June 2015

Legal Conundrum in the Manned Civil Station: Patenting Woes

Image Source: https://upload.wikimedia.org/wikipedia/commons/0/04/International_Space_Station_after_undocking_of_STS-132.jpg

Space explorations gained a lot of pace after the successful launch of Sputnik, in 1957. Soon after, there have been many other successful space ventures, including the first man landings on the moon via the Apollo 11 in 1969. Neil Armstrong the first man to walk on the moon uttered the famous words, “That’s one step for [a] man, one giant leap for the mankind.” In perspective the words were not wrong, the success of the mission inspired many other daring explorations into the outer space.

A spur of growth in space activities resulted in cross-border, bilateral, multinational ventures. One mission that is worth the mention, standing as a base for future experimentation in terms of technological advancement and legal exemplar is the International Space Station. The International Space Station, or ISS, is a prominent example in this front. The commercialization of the space industry is a result of the high costs involved in the technology for realization of big projects; a cooperative venture undertaken between States was the first step towards this form of globalization. As of this date, the ISS has been the most complicated of all the space explorations, politically. This collaboration of the five space agencies, the NASA, Roscosmos, JAXA, ESA and the CSA is a habitable civil station, and has been in orbit since 1998.

The ISS has been built with the objective of research and development in the fields of biology and biotechnology, educational activities, earth and space science, human research, the physical sciences, and all the relevant technology which can be utilized in long term space explorations. There already are several patents and partnerships in place which illustrated the benefits of the public investment in the ISS.1

The fact that the ISS is a manned civil station installed in the outer space does not deter the astronauts within the module to work regularly. The control centers are responsible for prioritizing the experiments conducted, monitoring the resources and management of the time in the hands of the astronauts.2

While the race towards the outer space started as an exclusive work front of the national governments, it gradually took into its embrace the private entities. The American aerospace manufacturer, SpaceX3, has been awarded a Commercial Orbital Transportation Services4 contract to launch a system to resupply cargo to the ISS. The goal of the commercial crew and cargo transport capabilities is to “develop reliable means of launching cargo and supplies to the ISS throughout the duration of the facility’s operation”.5 Through these public private partnerships, it is easier to achieve and develop technology, while saving public capital investment and time factor.

With participation flowing in form of private investments there is also the need for according protection and assuring returns on the investments privately placed by this sector. The present conditions stress on the inventors’ claims over their own labor. Today, SpaceX enjoys the reputation of being associated with the noble mission of the ISS, acting as a contractor for developing efficient commercial launch systems. With an increase in the involvement of private players in the domain, claims over intellectual creations are bound to come up in the future.

While the debate is on for the ownership and the granting rights over the inventions made in the outer space, as a consequence the matters of applicable law and jurisdiction are also elements of consideration. Patent laws are strictly territorial in nature, it is understood that patented invention enjoys monopoly and protection against infringement only within the territory which grants it those rights in the first place. On the other hand, space is an extra-terrestrial domain, where the national laws are not applicable and the international principles prevail.

If we rely on the Outer Space Treaty,6 we are to understand that the outer space is open to all mankind, and cannot be appropriated by claims of sovereignty of the nations. The Treaty also provides for the jurisdiction and the control of the space vehicle to be awarded to the registering state (Article VIII provisions). While we are to understand that the control extends to the personnel within the space vehicles, are the provisions enough to take into consideration the infringement matters too?

If we look at the example of the ISS, special attention must be given to the ESA, which has participation from about 10 states, and not all the 21 ESA member states. Where a dispute of patent infringement arises on the ESA module of the manned civil station, it is open for the aggrieved to bring action against the infringer in any of the participating member states of the ESA. This also gives way to instances of forum shopping, where the aggrieved will always look for the most favorable jurisdiction to put forth his claims.

The United States was the first nation to explicitly extend the application of its patent laws into the outer space, through § 105 Inventions in Outer Space.7 Other follow the suit, with Germany first letting its patent laws be applicable by de facto provisions. While the Article 21 of the IGA gives a clear mandate to the state of registration of a space station flight element, to extend the scope of its ‘national’ patent law to the activities occurring in the particular element, we are yet to achieve uniformity in the applicable law.

As of now, the NASA has contracts with private entities; soon enough there will be many other international arrangements with the other space agencies opening up. As we progress with the evolution of the ISS we stand to witness many potential legal threats, and hopefully all of it will guide us towards the onslaught of a uniform patent regime.

Author: Mr. Amitava Chakraborty 
- IPR, Space Law and Technology Consultant (India, US, EU)
- Indian Patent Agent (IN/PA-1467)
and Ms. Bagmisikha Puhan (Associate)
Email: achakraborty@tmtlaw.co.in

  1. http://www.nasa.gov/mission_pages/station/research/results_category, Visited April 27, 2015.   
  2. European Space Agency,  Columbus: A New European Science Laboratory in Earth Orbit, Oct. 2007. 
  3. Space Exploration Technologies Corporation, SpaceX, is an American aerospace manufacturer, which also provides services of space transport. See more at, http://www.spacex.com/, Visited April 24, 2015. 
  4. Human Space Flight Transition Plan, p. 23. See also at, http://www.nasa.gov/subject/3622/commercial-resupply/, Visited April 24, 2015. 
  5. National Aeronautics and Space Administration Authorization Act, 2010, Sec. 401 and 402.
  6. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, Oct. 10, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205.
  7. 35 U.S.C. 105, Inventions in Outer Space, Pub. L. No. 101-580, § 105, 104 Stat. 2863 (1990).

Friday, 22 May 2015

Attempts to Commercialize: Reality Check for Indian Space Economy

Image source: wikipedia

In a recent move, the government has decided to unlock the potential of a quite a number of unlisted companies by the means of disinvestment.1  Stake sale has been planned for some of the profit earning subsidiaries, the list including Antrix Corp. This private limited company owned by the Indian government, a “Mini Ratna” company is the marketing arm of the Indian Space Research Organization (ISRO).

With the government wanting increased commercial participation in the space industry, an obvious implication which follows is the glaring need for the protection of the intellectual property which follows innovation in the outer space. While the NASA has been wise in considering patent benefits for the private sector, to promote participation and innovation, it is for India to follow the suit.

There are two very specific programs under which the NASA collaborates with the private sector enterprises for affordable and efficient technology implementation. The Commercial Cargo Development Program and the Commercial Crew Development Programs have been initiated for continued support and evolution of the International Space Station. The American aerospace manufacturer, SpaceX2 , has been awarded a Commercial Orbital Transportation Services3  contract to launch a system to resupply cargo to the ISS. It is important to look into these examples, as they stand to save public capital investment and time.

Private collaboration in the realm of space explorations has gone to the extent where NASA has delegated the management of the US National Laboratory at ISS to CASIS. This is done by the execution of a Cooperative Agreement with intent to develop the capability to implement research and development projects utilizing the International Space Station (ISS) National Laboratory (NL) and to manage the activities of the ISS NL4.  It is to be understood that the organization has to comply with the research objectives, while creating public awareness of the research activities carried out in the national laboratory.

India is not a participant to this great outer space mission of the mankind. But as it goes, “That’s one step for [a] man, a giant leap for the mankind”. If we are to believe that space race will witness active participation from various countries, we are also to accept the fact that the private sector enterprises will be needed for effective and timely implementation of the advanced programs.

Where the government plans disinvestment for its privately held, marketing arm of the ISRO, it has to ensure that there are laws in place which protect the investments which flow towards the technology involved. The primary concern of any investment is the returns on investment, which can be achieved well in terms of technological ventures through commercial and exclusive exploitation of the technology. Patent rights serve as the best tool for monopolistic controls over the invention.

Where space technology is considered to be high end, severely complex, it is for the laws to recognize the potentials of the inventors and accord them with due rights to exploit their technology for monetary returns. Only by way of constructive deliberation and proactive involvement of the government in enabling and implementing a comprehensive patent regime for the space innovations, can the country expect the private sector to be interested in the rapid growth of space explorations and innovations.

We can look forward to a cross-sectoral discussion, involving representatives from the relevant sectors for a fair and responsible assessment of the present laws and capabilities. If we seek to empower our private sector, we need to specifically address the scope and the potentials of the sector. It is time that we analyze the performances of the private sector investment and involvement in the outer space activities as that of SpaceX, for a constructive feedback.

Author: Mr. Amitava Chakraborty 
IPR, Space Law and Technology Consultant (India, US, EU)

Email: achakraborty@tmtlaw.co.in


1. http://www.ibtimes.co.in/government-plans-divest-stake-25-companies-including-unlisted-psu-ipos-633113

2. Space Exploration Technologies Corporation, SpaceX, is an American aerospace manufacturer, which also provides services of space transport. See more at, http://www.spacex.com/, Visited April 24, 2015. 

3. Human Space Flight Transition Plan, p. 23. See also at, http://www.nasa.gov/subject/3622/commercial-resupply/, Visited April 24, 2015.

4. National Aeronautics and Space Administration Space Operations Mission Directorate, Cooperative Agreement Notice – ISS National Laboratory Management Entity, NNH11SOMD002C, at p. 1.

Wednesday, 22 April 2015

To Mars, On A Shoestring Budget

Image Source:http://i.telegraph.co.uk/multimedia/archive/02445/mars_2445397b.jpg

We are in the space age! Where the Indian Budget plans have allocations to the tune of USD 7.4 bn1   towards the development of space related activities, and sponsored space explorations, we also proudly stand to have been able to make sustainable, cheap missions. India’s first interplanetary mission has made us the first nation in the entire world, to reach the Mars Orbit in the very first attempt. In many of firsts, ISRO is only the fourth space agency to have successfully reached the red planet’s orbit, only after the Soviet Space Program, NASA and the European Space Agency.2 

Interestingly, the total cost of the mission was approximately  450 Crores (US $ 74 mn). In comparison with the missions sponsored by the other space agencies, this is the cheapest mission by far. The following figure gives a comparative sketch of the costs of all the missions conducted to reach the Mars Orbit, as of yet. Our mission into the mars orbit comes at a comparative cost of about 11% of the Maven Mission, impressive it is!

One of the main objectives of this mission is to “develop the technologies required for design, planning, management and operations of an interplanetary mission.” The technological objective of the mission envisages the design and realization of an orbiter which is capable of sustaining and performing earthbound maneuvers; deep space communication and navigation. The scientific objectives of the mission aim at exploring the surface features of the red planet, the Martian morphology, mineralogy and the atmosphere.3 

This 1337 kg weighing satellite deemed for the purposes of ‘science and exploration’4, has been successfully launched into the outer space at a budget even less than a few Hollywood movies about space. The latest movie on Space “Interstellar” released in 2014, came out with a production budget of $165 mn.5 


India’s achievement has been made possible for a really small budget. And, when we compare the investments in our mars mission to that of the investments made in the films about outer space exploration, we find the inspiration to proceed on the space front with our low cost innovations and efficient launching facilities. 

From where we started with writings on astronomical computations by Aryabhata, Brahmagupta and Bhaskara I, we have come to the point of funding mars orbiter missions on shoestring budget. The mission planning, manufacturing of the spacecraft, launching of the vehicles and fine tuning the support systems were all done in a constrained time frame, once India decided to go to Mars.7 

The country is on its way to demarcate a niche for itself in the domain of space technology and high end technical, scientific missions. It is for these times that we will need a stringent and comprehensive framework for the protection of the Patent rights in the outer space. 

Author: Mr. Amitava Chakraborty 
IPR, Space Law and Technology Consultant (India, US, EU)

and Ms. Bagmisikha Puhan (Associate)

Email: achakraborty@tmtlaw.co.in


1. The Space Economy at Glance 2014, available at: http://www.oecd-ilibrary.org/docserver/download/9214061e.pdfexpires=1423394326&id=id&accname=guest&checksum=A6453B005F605213B25A7F83C941B9E7, last visited on  April 20, 2014.

2. http://abcnews.go.com/Technology/india-launches-mars-orbiter-mission/story?id=20793860, last visited on April 22, 2015.

3. http://www.isro.org/pslv-c25-mars-orbiter-mission/mission-objectives, last visited on April 22, 2015.

4. Ibid.

5. http://www.boxofficemojo.com/movies/?page=daily&id=interstellar.htm, last visited on April 22, 2015.

6. http://www.nbcnews.com/news/asian-america/indias-mars-mission-was-cheaper-all-these-hollywood-movies-n214861, last visited on April 21, 2015. 

7. Supra n. 3.

Friday, 13 February 2015


Image Source:cssatellitenews.tumblr.com
The global space-patent economy is growing by leaps and bounds with respect to export and import volumes in the recent years. According to the Twelfth Five Year Plan (2012-2017), India is also contributing to the space race by assigning USD 7.4 billion1 towards this. The major patentable space related inventions include general satellite technologies, Satellite navigation, Cosmonautics, Satellite communications, Satellite earth observation.2 Now, outer space and patent rights are subject to two different schools of jurisprudence, and their regimes do not go hand in hand.

  • The patent regime advocates monopolistic rights for the person exploiting the intellectual creations. Thus inventor would be entitled to reap the benefits of his or her invention by getting exclusive rights over the use of others, in terms of royalty. 
  • Whereas ‘space law’ on the other hand has some fundamental principles like the "province of all mankind,” "common heritage of mankind,” “benefit of all countries," amongst others, which stand up for common benefits. 

In terms of space related patenting on a regional scale, the highest shares can be found in regions of USA with highest around 12%, France 10%, Japan 5% and China 4% between the years 2001-03 and 2009-11.3 When other countries are way ahead in the space patents race, India is lagging   in the race having a nominal fraction of 0.6% of PCT applications between years 2000-2003 and 2009-11.4

The Indian Space programme has been active for more than half-a-century and the Indian Space Research Organization (ISRO) is the main manufacturer of space products in India. It assembles satellites, and launches space vehicles from over eleven centers boasting of more than 14000 employees.

Since 1973, ISRO has filed several applications before the Indian Patent Office, of which about 270 have been granted till 2014.5

On the contrary, only 45 Copyrights and 10 Trade Marks have been granted by the IPO. So it is evident that space patents would take pivotal role in the growth of Indian economy and thus needs to be addressed with measures. As of this date India does not feature in the list of top 20 regions in space related patents list on a global scale.6

In the recent sectorial policy Space Sector is allowed to have upto 74% Foreign Direct Invest Investment through government route. Again, private entities are expected to become more important as the demand for PSLVs currently surpasses ISRO’s production capacity. Thereby the need of telecommunication satellites is constantly increasing, as there already is extensive use of telemedicine, tele-education in rural areas. About 7957.61 million people use telephones as of 30th September 2014,7 and 56.5 million subscribers are registered with 6 private direct-to-home (DTH) services as of 31st March 2013 in India.7  It is expected that private entities will play a major role in the space sector. If any private entity invents any space product, then question arises as to who will be the true   holder of patent rights. The focus lies with Patent rights, as it already enjoys a strong position in the IP Portfolio of ISRO. It is safe to assume that investors will favor space related inventions.

Now, if we assume that intellectual creations in outer space can be subject to the patent regime, related questions for consideration are:-
  •  Who has the right to patent protection? Will it be the ‘first to file’ or the ‘first inventor to file’? 
  •  Ownership rights of private investors
  •  As outer space does not belong to any one State, the complex question of jurisdiction and applicable law comes into the fore in every case of  infringement of the Earthly patents.
  •  How to treat inventions pertaining  to the defense utilities and under the protection of secrecy? 
Again, there is no legal provision which answers the above mentioned question in India and to attract investors to invest in the space patent sector for the harmonious growth.  There is no concrete legal regime in India to meet the questions raised here.

Thus, we need to have a comprehensive space patents legislation which shall in turn create the right balance between international obligations pertaining to space law and monopolistic patent rights. This would in turn help in establishing national security, growth and sovereignty in the technology driven space economy in India.

Author: Mr. Amitava Chakraborty 
IPR, Space Law and Technology Consultant (India, US, EU)

Email: achakraborty@tmtlaw.co.in


1. The Space Economy at Glance 2014, available at: http://www.oecd-ilibrary.org/docserver/download/9214061e.pdf?expires=1423394326&id=id&accname=guest&checksum=A6453B005F605213B25A7F83C941B9E7, last visited on 08 February 2014.
2. Ibid

3. Ibid

4. Ibid

5. Patent-ISRO, available at: http://www.isro.gov.in/isro-technology-transfer/patent,  last visited on 08 February 2015.

6. Supra, n.01

7. Highlights of Telecom Subscription Data as on 30th September 2014, available at http://www.trai.gov.in/WriteReadData/WhatsNew/Documents/PR-TSD-Sep-14.pdf, last visited on February 8, 2015.  

8. The Indian Telecom Services Performance Indicators January-March 2013, available at http://www.trai.gov.in/WriteReadData/WhatsNew/Documents/Indicator%20Reports%20-01082013.pdf, last visited on 08 February 2014.