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Space technology transfer problems in the context of protecting the space heritage
Space Policy xxx (xxxx) xxx–xxx
Contents lists available at ScienceDirect
Space Policy journal homepage: www.elsevier.com/locate/spacepol
Space technology transfer problems in the context of protecting the space heritage Marta E. Wachowicza,∗, Marek Buryb a b
Polish Space Agency, Powsińska Str. No 69/79, 02-903 Warszawa, Poland Bury & Bury Kancelaria Patentowa, Słowackiego 5/13 lok. 111, 01-592 Warszawa, Poland
A R T I C L E I N F O
A B S T R A C T
Keywords: Space technology transfer Space applications Patent IP protection Space heritage Terrestrial applications
The paper concerns space technology transfer issues related to patent protection challenges in space sector. Inventions in the field of space engineering continuously constitute significant part of the innovative space market. The protection of intellectual property not only is extremely helpful in cooperation in international and multi-entity projects but also may become a stimulus for further terrestrial and extraterrestrial business opportunities. The variety of space technologies, restricted space market and unique knowledge proved in the space environment, requires special treatment in the context of intellectual protection. The technology transfer process, which consists of extracting and marketing space technologies, services and applications, for a purpose which were not originally intended, requires also a new approach in the context of patent policy. Issues like space patent paradox, space requirements and the consequences for the market, as well as transfer of space technology to non-space applications and finally, space exploration and benefits for mining industry on Earth, have been discussed.
1. Introduction
2. Space patent paradox
Space technology transfer process is different than in fields or technology. The difference is caused by significantly higher investment costs, atypical requirements that space equipment has to meet, the need for dedicated infrastructure and highly specialized human resources – namely engineers. The number of patented space applicable invention is increasing, despite the fact that this form of IP protection has been so far not as common in space industry as in other sectors. Traditionally, in the space industry it was the space heritage, the reputation of being of reliable contractor and confidentiality that decided whether contracts were won or not. Consequently these qualities naturally were more taken care of than the patent protection. Present paper concerns issues related to the space technology transfer specificity and the meaning of the patent in space sector, namely:
Patent protection is based on an economical principle that if the inventor or his successor in title is granted a time limited monopoly in exchange for disclosing his invention to the public, then the technological development is faster and economy grows. The monopoly must be guaranteed in a legal system and legal systems are geographically limited – most often to single countries. Hence, patent right is also by definition geographically limited. Also the idea of transaction “monopoly-for-disclosure” requires further constrains regarding the invention, so that the system could work properly. In most legal systems those constrains are: novelty (invention has to be new – not disclosed previously), inventive step (invention has to be non-obvious) and industrial applicability – or similar ones. Additionally for maintaining protection additional fees are charged. Fees are periodical, typically annual and increasing in time. It is a part of the system to make it inviable for patentee to maintain an exclusive right for a product that is not on the market and that does not make money for him. Although often legal acts do not provide a definition of the term invention, it is quite universally acknowledged that invention is a solution to a technical problem. It usually is one of following categories: a device, a product (substance), a use, or a process (a method). In some legal systems there are also specified additional categories. In other
(i) (ii) (iii) (iv) (v)
∗
space patent paradox, space engineering requirements, space-related inventions and the utility scale of application, transfer of space technology to non-space applications, space exploration prospects and protection of the way of taking samples from extra-terrestrial bodies.
Corresponding author. E-mail addresses: [email protected] (M.E. Wachowicz), [email protected] (M. Bury).
http://dx.doi.org/10.1016/j.spacepol.2017.08.001 Received 4 January 2017; Received in revised form 9 May 2017; Accepted 4 August 2017 0265-9646/ © 2017 Elsevier Ltd. All rights reserved.
Please cite this article as: Wachowicz, M.E., Space Policy (2017), http://dx.doi.org/10.1016/j.spacepol.2017.08.001
Space Policy xxx (xxxx) xxx–xxx
M.E. Wachowicz, M. Bury
heat radiation. Therefore, despite ambient temperature so extremely low that it changes mechanical parameters of metals overheating still may be a problem. This effect combined with the possibility of exposition to the radiation of Sun extends effective range of operating temperatures for the space equipment to more than 200°. On the one hand, variety of technologies and space market, on the other unique knowledge proved in the space environment, requires special treatment in the context of intellectual protection and patent policy. Patenting such technologies gives a prospect for inventors and applicants to obtain just and fair reward for their contribution that prove to be useful not only in space. The main challenging task for space IP protection is to prepare the patent application with broad scope of protection and coordinate prosecution in coupling with process of identifying the actual products and market opportunities while simultaneously limiting the scope of protection to remedy objection with respect novelty or inventive step risen by patent offices. That requires specialists with open mind and understanding not only of the interdisciplinary invention but also the market strategy applied by the applicant. Patent protection policy is influenced by several factors:
some are limited. The category of the invention affects the possibility of enforcement of a patent as the monopoly given by the patent is given for invention and defined by patent claims. Patent claims are formulated to cover particular categories Generally, monopoly refers to commercial use or introduction to the market. Hence, categories of invention indicated in patent claims are somewhat limiting and also crucial for evidencing and determination of the patent infringement. For example evidencing of infringement of the device claim usually consists in buying a product - device, disassembling it taking photos and labelling features indicated in the claim. If all features of claims are identified in the product then infringement is proved. On the other hand evidencing infringement of a claim directed to method requires observation or obtaining detailed information regarding details of certain process executed commercially by he assumed infringer. A tricky part of the patent system is that a person applying for a patent (Applicant) has to disclose his invention before patent is granted. It cannot be “taken back” and it is disclosure (patent application) what is examined to determine if all conditions for patentability are met. It means that patenting involves risk of giving away the invention “for free”. That risk is highly deterring in sectors in which confidentiality is default mode of protection. Space industry is one of them. In fact space industry is even trickier. A patent's coverage is limited to the particular territory that issues the patent. However, outer space is no one's territory. There is no Space Patent Office or Space Patent Court. Furthermore, there is no legal system that would allow patentee to enforce patent in extra-terrestrial space. On the first thought it seems to be a space patent paradox as applicant would disclose invention and obtain no protection for the field of application that is most important to him. However, it must considered where is the money in space industry and what are the principles of its flow/distribution. It should be observed that space instruments and devices are manufactured on Earth and in the limited number of countries. Suppliers of those devices receive either public or private funds for their products and often compete for the orders from the agencies. It leads to quite obvious conclusion that although space devices are applied in space the money in them can be made on Earth and in quite specific locations. Patent protection provides possibility to win some of the orders by ruling out the competitors if the patent protection covers these very locations. It should be pointed out that actions taken in space can also bring significant commercial benefits and yet space is excluded from patent protection. It is a challenge for international space law to find an answer to the question, whether that situation increases or decreases the development of space technologies. Should it be the latter the problem can be solved by ratification of international treaties [5]. Space Patent Office or Space Patent Court sound rather peculiar now but it may be a way to speed up the space industry.
(i) Patent for space equipment gives monopoly for the entity to be commercial provider of such equipment for space missions; (ii) Patent is recognised as being prestigious. It shows the financial engagement. (iii) Patent law has provisions for rewarding the inventors and enforces establishment of codified relations applicant-inventor. (iv) Patent law is well suited for technology transfer. Hence it facilitates reuse of space inventions in terrestrial applications. SME may be interested in starting a new space business, expanding an existing business (extending territory or changing the focus) and thereby improving its market position. In many situations, licensing of intellectual property rights is an effective tool for achieving business goals, or even it is the only possibility in terms of international contracts or applying for space agencies tenders. In the international context, a formal licensing agreement of space technology is reasonable only if the intellectual property right to be licensed has a territorial scope that covers all the countries involved. Should there be otherwise, the licensor would not only be able to enforce an exclusive right against third parties and the licensee might not be willing to accept the situation in which he would be obliged to pay for the technology that is free to other entities. Last but not least reason for patenting space inventions is the fact that they are not only applicable in space. There are many inventions that were initially dedicated to space applications but in time proved to have huge market potential in everyday life and common industry – Light-Emitting Diodes (LEDs) and memory foam, to mention just the two.
3. Space requirements and the consequences for the market 4. Space technology transfer – terrestrial applications Usually, requirements in the space sector are very high; specific conditions in space cause that products are characterized by unconventional engineering solutions - in the field of mechatronics, optics, electronics, engineering, physics. It is a truth quite universally acknowledged, that space dedicated mechanisms have to be lightweight and durable, and particularly extremely reliable. It is a simple consequence of high cost of placing devices in outer space with barely any possibility of servicing them. Simultaneously, space equipment is subjected to unique and extreme conditions. Main factors that might affect space mechanisms are high vacuum, extremely low temperatures (even −160° C) and micro-gravity conditions. The development of reliable mechanisms working in space requires very good knowledge of that environment, assessment of risks, use of modern technologies and extensive testing. The lack of atmosphere results in non-existent convection of space. Cooling of space mechanisms is substantially based on
Space technology transfer is different than in other branches of R & D, due to very high investment costs, special requirements for space technology, and the need for dedicated infrastructure and highly specialized engineers. The most efficient innovations often derive from using existing technologies for purposes unrelated to their original applications and assignment. A very important and promising channel of commercialization of research results and achieving the benefits of intellectual property protection is the use of space research knowledge to terrestrial, nonspace applications. Space technologies are the reservoir of innovation; numerous interesting applications of technology or materials that had initially been developed for space have proved to be successful in common life application. Space exploration has created new markets and new technologies 2
Space Policy xxx (xxxx) xxx–xxx
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mining activities. Near-Earth asteroids are much closer energetically to Earth, than even Moon, making them perfect targets for asteroid prospecting and mining missions. In 2015, President Obama signed a legislation act that recognizes the right of U.S. citizens to own asteroid resources they obtain and encourages the commercial exploration and utilization of resources from asteroids. The U.S. Commercial Space Launch Competitiveness Act is a key milestone in the roadmap to access asteroid resources for commercial use in space. (The best example is Planetary Resources company). Most of the asteroids are rocky, airless bodies that orbit Sun and gathered in the main asteroid belt, ring between the orbits of Mars and Jupiter. Resource extraction from asteroids are expected deliver multiple benefits to humanity and grow to be valued at tens of billion of dollars annually. The effort will tap into the high concentration of precious metals found on asteroids, especially rare Earth elements. More than 10 spacecraft have already explored asteroids. NEAR Shoemaker even landed on an asteroid Eros. In 2006, JAXA's (Japan Space Agency) Hayabusa became the first spacecraft to land on and take off from an asteroid. It returned to Earth in June 2010, and brought the samples. NASA's Dawn mission, launched in 2007, began exploring Vesta in 2011. One of the most important tasks for the Fobos-Grunt, Russian sample return mission (launched November 2011), was to collect samples from Phobos' surface to be delivered back to Earth. The return vehicle was supposed to return to Earth in August 2014, carrying up to 200 g of soil from Phobos, but unfortunately the vehicle felt back on Earth. In 2012, Planetary Resources announced plans to send a mission to a space rock to extract water and mine the asteroid for precious metals (rare Earth) [2]. On 12 November 2014, ESA's Rosetta mission soft-landed its Philae probe on comet 67P/Churyumov-Gerasimenko, for the first time in history such an extraordinary feat has been achieved. Sampling the material was not planned, only the subsurface investigation and probing. NASA has begun to work on plans for its own asteroid-capture mission. In view of the above, protection of sample oriented technologies should attract a growing circle of main players. The above indicates that methods and devices for obtaining samples from extraterrestrial bodies are likely to become financially advantageous enterprise. This commercial activity is executed mostly in outer space and hence the problem of applicable law and possible ways of obtaining monopoly for advantageous technical solutions is not trivial. Still, the activity results in obtaining valuable products. Putting some effort into identification of possible ways of IP protection – at least partial – is therefore worth at least consideration. Let us consider a method claim for obtaining samples of asteroids involving three steps:
that have spurred the economy. The most impressive examples from the space sector are infrared ear thermometers, improved Radial Tires, freeze drying technology, powdered lubricants, portable cordless vacuums or water purification systems. Aural thermometer developed by NASA uses infrared astronomy technology to measure the amount of energy emitted by the eardrum. For the Apollo space mission, NASA required a portable, self-contained drill capable of extracting core samples from below the lunar surface. Black & Decker designed the drill's motor and insured minimal power consumption, which led to the development of a cordless miniature vacuum cleaner called the Dustbuster. (Nasa spin-off data 1981). NASA engineers are developing a complex system to sustain human life on the International Space Station and, in the future, on the Moon or Mars. This system should use available resources by turning wastewater from respiration, sweat, and urine into drinkable water. Commercially, this system is benefiting people all over the world -who need affordable, clean water, especially in regions where water may be heavily contaminated. (Nasa Spinoff data1995, 2006). Products designed for space exploration fulfil the construction requirements that are adequate to the extreme conditions in space, such as very low temperatures and significant temperature gradient depending on the Sun position, vacuum, different from the Earth's gravitational field, cosmic dust pollution, strong cosmic radiation. Any instruments, devices and elements are designed, tested and assembled with extreme precision, using specialized and dedicated hardware, and under very strictly controlled conditions. Instruments exploring interplanetary space are exposed to many threads, such as collision with minor bodies, strong magnetic storms, increased solar activity, solar wind streams. Therefore, space engineering requires the developing of very high-performance products. Space technology, components or applications constitute a huge potential for terrestrial applications. There are space agencies activities specifically directed to the exploitation of space technologies to non-space applications [1]. NASA has documented nearly 1800 spin-off technologies in a variety of disciplines and industry branches, as medicine, transportation, new materials, security, miniaturization or computer technologies [4]. The technology transfer process consists of extracting and marketing space technologies, services and applications, for a purpose which was not originally intended. European Space Agency (ESA) has its own Technology Transfer Programme, which provides a number of opportunities to entrepreneurs to take advantage of the wealth of available technologies, expertise, patents, systems and services from ESA's space programmes [3]. At the ESA level support for the technology transfer is provided in a number of different ways. The most popular in space community is Technology Transfer Network and its technology broker companies throughout Europe, than collaboration with national technology transfer initiatives in ESA Member States is worth mentioning. Around Europe there are business incubation centers dedicated to space SMEs. There is a need to emphasize that ESA develops highly sophisticated technologies and applications to support its space programmes, many of them resulting in intellectual property. ESA is managing IP and commercializing it to the non-space industry, in order to make sure they are exploited to their full potential.
A sending device X to the asteroid, B taking sample, and C delivering the sample back. Such a method might be patentable providing device X and all 3 steps are fairly more precisely defined and naturally on the condition that it is novel and involves inventive steps. Naturally sample would have to be extremely valuable to make the whole process economically justified. At least in some patent systems products obtained directly by claimed method are also protected. Hence obtaining a valid patent for a given method of obtaining samples may provide an enforceable protection for purely space-applied technology. Naturally, things would complicate if steps regarding sending and step regarding delivering back would be executed in different legal systems. The mentioned issue is surprisingly serious as asteroids exploration and taking samples from small bodies of our Solar System are becoming increasingly more important. Exploring asteroids, as well as the Moon subsurface activities have set new directions and new challenges in the space technology transfer. Preparation to the Moon subsurface exploration requires three
5. Space exploration and benefits for mining industry on Earth At the moment we are facing an increase in investments by governments and private stakeholders in space exploration. In the newest ESA Space Exploration Strategy the mission theme of sustainable exploration of the Moon is integrated in the strategic exploration approach for Europe. A guiding principle is to implement exploration missions with humans and robots in a coordinated manner. The ESA exploration strategy considers the Moon as the next destination for humans venturing beyond Low Earth Orbit and an integral element of the roadmap towards human missions to Mars. The second important and crucial topic for the exploration space community is asteroid 3
Space Policy xxx (xxxx) xxx–xxx
M.E. Wachowicz, M. Bury
major actions. The first one is related to the technological challenge, especially for deep drilling or excavation process, what should be done by consortia composed of space hardware specialists and terrestrial mining industry members/specialists. The second action, is related to establishing appropriate conditions for socio-economic policy development for such activities, like regulations for selling goods obtained from the Moon or asteroids, which was mentioned above. Last but not least, is social impact, showing the importance of exploration by measurable benefits to mankind will contribute to the growth of acceptance for space activity. Restrictions and limitations for „mining” in space result in the new terrestrial mining approach. The mining industry has lagged behind others in technological advancement, this sector is often criticized as an industry where innovation and technological changes are resisted and implemented very slowly. There is a number of intrinsic features of mining that make technological changes difficult. The most important are remote areas, hazards and scale. 40% of the global economy is directly or indirectly dependent of the mining sector, according to the report [6] The future of the mining industry: opportunities, challenges and responsibilities (2012). Global mining, as well as the energy industry is currently experiencing its biggest boom in 50 years, as the demand for resources is driven by industrialization and urbanization of China and India. In spite of the positive market situation, the industry is facing major challenges. The crucial feature is that mining industry is using more and more energy to dig out metals out of the Earth and is thereby driving up prices and costs. Mining companies today face a complexity of problems: not only the spiralling costs, and government intervention, but also deepening pits, lower ore grades and declining productivity. Space technology transfer – Moon mining can bring more benefits on Earth for that sector. To increase the productivity, to boost efficiency and profitability there is a need to draw inspiration from other sectors, especially from space sector and look towards automation, IT and smart technologies. Investigations into new functional materials for use in mining equipment and continuous improvement of existing and development of new intelligent IT systems and sensor technologies are key actions needed. Challenges from the new technologies will additionally affect the demand for mineral raw materials. Non-energy and non-agricultural raw materials underpin the global economy and are vital for the EU's economy [7]. New technologies in almost any field of the daily life will require increasing input of crucial raw materials. Developing fully automated and autonomous machinery fully integrated in the overall
mining processes is needed. This machinery should aim at selective mining with boundary layer and material detection. Local navigation systems at the face together with collision avoidance and machine guidance systems will contribute to autonomy of the machines and to eco-efficiency. The safety issue should be also taken into consideration, using the space technology achievements (remote and autonomous operations) mining disasters can be prevented, or through well designed emergency preparedness planning, mitigate or minimize their effects. The necessary level of automation in mining operations regarding also health and safety and logistics issues can only be achieved by reaching a higher level of integration in all parts of a mine. Fully integrated underground technologies and processes for diagnosis, maintenance and extraction as well as communication [2], health and safety issues are the key for the success. The inspiration can also came from space sector and mission planning. 6. Conclusions It has been shown that activities executed in outer space are in difficult relation with patent systems. It should be pointed out that patent protection supports development of technique and the techniques for exploration of extraterrestrial bodies are definitely worth supporting. To this end a way of argumentation towards covering methods of obtaining samples from outer space by method claims has been demonstrated. However, it is suggested that further development of law towards patent protection in outer space is more than advisable. References [1] J. Bessen, J.B. Love, Make the patent polluters pay: using pigovian fees to curb patent abuse, Calif. Law Rev. Circuit 4 (2013) (2013) 84–91. [2] ERA-MIN Research Agenda – Roadmap, 2013 http://www.era-min-eu.org. [3] ESA BR-303 Agenda, A Document by the ESA Director, ESA, 2015. [4] NASA Spinoffs data, www.spinoff.nasa.gov. [5] Á. Sánchez, P. Hortal, D. Cuesta, Patent Costs and Impact on Innovation International Comparison and Analysis of the Impact on the Exploitation of R & D Results by SMEs, Universities and Public Research Organisations, Publications Office of the European Union, 2015. [6] The Future of the Mining Industry: Opportunities, Challenges and Responsibilities, (2012) http://nordicinnovation.org/news/the-future-of-the-mining-industryopportunities-challenges-and-responsibilities. [7] The Space Economy at a Glance 2014, OECD Publishing, OECD, 2014.
4
Contents lists available at ScienceDirect
Space Policy journal homepage: www.elsevier.com/locate/spacepol
Space technology transfer problems in the context of protecting the space heritage Marta E. Wachowicza,∗, Marek Buryb a b
Polish Space Agency, Powsińska Str. No 69/79, 02-903 Warszawa, Poland Bury & Bury Kancelaria Patentowa, Słowackiego 5/13 lok. 111, 01-592 Warszawa, Poland
A R T I C L E I N F O
A B S T R A C T
Keywords: Space technology transfer Space applications Patent IP protection Space heritage Terrestrial applications
The paper concerns space technology transfer issues related to patent protection challenges in space sector. Inventions in the field of space engineering continuously constitute significant part of the innovative space market. The protection of intellectual property not only is extremely helpful in cooperation in international and multi-entity projects but also may become a stimulus for further terrestrial and extraterrestrial business opportunities. The variety of space technologies, restricted space market and unique knowledge proved in the space environment, requires special treatment in the context of intellectual protection. The technology transfer process, which consists of extracting and marketing space technologies, services and applications, for a purpose which were not originally intended, requires also a new approach in the context of patent policy. Issues like space patent paradox, space requirements and the consequences for the market, as well as transfer of space technology to non-space applications and finally, space exploration and benefits for mining industry on Earth, have been discussed.
1. Introduction
2. Space patent paradox
Space technology transfer process is different than in fields or technology. The difference is caused by significantly higher investment costs, atypical requirements that space equipment has to meet, the need for dedicated infrastructure and highly specialized human resources – namely engineers. The number of patented space applicable invention is increasing, despite the fact that this form of IP protection has been so far not as common in space industry as in other sectors. Traditionally, in the space industry it was the space heritage, the reputation of being of reliable contractor and confidentiality that decided whether contracts were won or not. Consequently these qualities naturally were more taken care of than the patent protection. Present paper concerns issues related to the space technology transfer specificity and the meaning of the patent in space sector, namely:
Patent protection is based on an economical principle that if the inventor or his successor in title is granted a time limited monopoly in exchange for disclosing his invention to the public, then the technological development is faster and economy grows. The monopoly must be guaranteed in a legal system and legal systems are geographically limited – most often to single countries. Hence, patent right is also by definition geographically limited. Also the idea of transaction “monopoly-for-disclosure” requires further constrains regarding the invention, so that the system could work properly. In most legal systems those constrains are: novelty (invention has to be new – not disclosed previously), inventive step (invention has to be non-obvious) and industrial applicability – or similar ones. Additionally for maintaining protection additional fees are charged. Fees are periodical, typically annual and increasing in time. It is a part of the system to make it inviable for patentee to maintain an exclusive right for a product that is not on the market and that does not make money for him. Although often legal acts do not provide a definition of the term invention, it is quite universally acknowledged that invention is a solution to a technical problem. It usually is one of following categories: a device, a product (substance), a use, or a process (a method). In some legal systems there are also specified additional categories. In other
(i) (ii) (iii) (iv) (v)
∗
space patent paradox, space engineering requirements, space-related inventions and the utility scale of application, transfer of space technology to non-space applications, space exploration prospects and protection of the way of taking samples from extra-terrestrial bodies.
Corresponding author. E-mail addresses: [email protected] (M.E. Wachowicz), [email protected] (M. Bury).
http://dx.doi.org/10.1016/j.spacepol.2017.08.001 Received 4 January 2017; Received in revised form 9 May 2017; Accepted 4 August 2017 0265-9646/ © 2017 Elsevier Ltd. All rights reserved.
Please cite this article as: Wachowicz, M.E., Space Policy (2017), http://dx.doi.org/10.1016/j.spacepol.2017.08.001
Space Policy xxx (xxxx) xxx–xxx
M.E. Wachowicz, M. Bury
heat radiation. Therefore, despite ambient temperature so extremely low that it changes mechanical parameters of metals overheating still may be a problem. This effect combined with the possibility of exposition to the radiation of Sun extends effective range of operating temperatures for the space equipment to more than 200°. On the one hand, variety of technologies and space market, on the other unique knowledge proved in the space environment, requires special treatment in the context of intellectual protection and patent policy. Patenting such technologies gives a prospect for inventors and applicants to obtain just and fair reward for their contribution that prove to be useful not only in space. The main challenging task for space IP protection is to prepare the patent application with broad scope of protection and coordinate prosecution in coupling with process of identifying the actual products and market opportunities while simultaneously limiting the scope of protection to remedy objection with respect novelty or inventive step risen by patent offices. That requires specialists with open mind and understanding not only of the interdisciplinary invention but also the market strategy applied by the applicant. Patent protection policy is influenced by several factors:
some are limited. The category of the invention affects the possibility of enforcement of a patent as the monopoly given by the patent is given for invention and defined by patent claims. Patent claims are formulated to cover particular categories Generally, monopoly refers to commercial use or introduction to the market. Hence, categories of invention indicated in patent claims are somewhat limiting and also crucial for evidencing and determination of the patent infringement. For example evidencing of infringement of the device claim usually consists in buying a product - device, disassembling it taking photos and labelling features indicated in the claim. If all features of claims are identified in the product then infringement is proved. On the other hand evidencing infringement of a claim directed to method requires observation or obtaining detailed information regarding details of certain process executed commercially by he assumed infringer. A tricky part of the patent system is that a person applying for a patent (Applicant) has to disclose his invention before patent is granted. It cannot be “taken back” and it is disclosure (patent application) what is examined to determine if all conditions for patentability are met. It means that patenting involves risk of giving away the invention “for free”. That risk is highly deterring in sectors in which confidentiality is default mode of protection. Space industry is one of them. In fact space industry is even trickier. A patent's coverage is limited to the particular territory that issues the patent. However, outer space is no one's territory. There is no Space Patent Office or Space Patent Court. Furthermore, there is no legal system that would allow patentee to enforce patent in extra-terrestrial space. On the first thought it seems to be a space patent paradox as applicant would disclose invention and obtain no protection for the field of application that is most important to him. However, it must considered where is the money in space industry and what are the principles of its flow/distribution. It should be observed that space instruments and devices are manufactured on Earth and in the limited number of countries. Suppliers of those devices receive either public or private funds for their products and often compete for the orders from the agencies. It leads to quite obvious conclusion that although space devices are applied in space the money in them can be made on Earth and in quite specific locations. Patent protection provides possibility to win some of the orders by ruling out the competitors if the patent protection covers these very locations. It should be pointed out that actions taken in space can also bring significant commercial benefits and yet space is excluded from patent protection. It is a challenge for international space law to find an answer to the question, whether that situation increases or decreases the development of space technologies. Should it be the latter the problem can be solved by ratification of international treaties [5]. Space Patent Office or Space Patent Court sound rather peculiar now but it may be a way to speed up the space industry.
(i) Patent for space equipment gives monopoly for the entity to be commercial provider of such equipment for space missions; (ii) Patent is recognised as being prestigious. It shows the financial engagement. (iii) Patent law has provisions for rewarding the inventors and enforces establishment of codified relations applicant-inventor. (iv) Patent law is well suited for technology transfer. Hence it facilitates reuse of space inventions in terrestrial applications. SME may be interested in starting a new space business, expanding an existing business (extending territory or changing the focus) and thereby improving its market position. In many situations, licensing of intellectual property rights is an effective tool for achieving business goals, or even it is the only possibility in terms of international contracts or applying for space agencies tenders. In the international context, a formal licensing agreement of space technology is reasonable only if the intellectual property right to be licensed has a territorial scope that covers all the countries involved. Should there be otherwise, the licensor would not only be able to enforce an exclusive right against third parties and the licensee might not be willing to accept the situation in which he would be obliged to pay for the technology that is free to other entities. Last but not least reason for patenting space inventions is the fact that they are not only applicable in space. There are many inventions that were initially dedicated to space applications but in time proved to have huge market potential in everyday life and common industry – Light-Emitting Diodes (LEDs) and memory foam, to mention just the two.
3. Space requirements and the consequences for the market 4. Space technology transfer – terrestrial applications Usually, requirements in the space sector are very high; specific conditions in space cause that products are characterized by unconventional engineering solutions - in the field of mechatronics, optics, electronics, engineering, physics. It is a truth quite universally acknowledged, that space dedicated mechanisms have to be lightweight and durable, and particularly extremely reliable. It is a simple consequence of high cost of placing devices in outer space with barely any possibility of servicing them. Simultaneously, space equipment is subjected to unique and extreme conditions. Main factors that might affect space mechanisms are high vacuum, extremely low temperatures (even −160° C) and micro-gravity conditions. The development of reliable mechanisms working in space requires very good knowledge of that environment, assessment of risks, use of modern technologies and extensive testing. The lack of atmosphere results in non-existent convection of space. Cooling of space mechanisms is substantially based on
Space technology transfer is different than in other branches of R & D, due to very high investment costs, special requirements for space technology, and the need for dedicated infrastructure and highly specialized engineers. The most efficient innovations often derive from using existing technologies for purposes unrelated to their original applications and assignment. A very important and promising channel of commercialization of research results and achieving the benefits of intellectual property protection is the use of space research knowledge to terrestrial, nonspace applications. Space technologies are the reservoir of innovation; numerous interesting applications of technology or materials that had initially been developed for space have proved to be successful in common life application. Space exploration has created new markets and new technologies 2
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mining activities. Near-Earth asteroids are much closer energetically to Earth, than even Moon, making them perfect targets for asteroid prospecting and mining missions. In 2015, President Obama signed a legislation act that recognizes the right of U.S. citizens to own asteroid resources they obtain and encourages the commercial exploration and utilization of resources from asteroids. The U.S. Commercial Space Launch Competitiveness Act is a key milestone in the roadmap to access asteroid resources for commercial use in space. (The best example is Planetary Resources company). Most of the asteroids are rocky, airless bodies that orbit Sun and gathered in the main asteroid belt, ring between the orbits of Mars and Jupiter. Resource extraction from asteroids are expected deliver multiple benefits to humanity and grow to be valued at tens of billion of dollars annually. The effort will tap into the high concentration of precious metals found on asteroids, especially rare Earth elements. More than 10 spacecraft have already explored asteroids. NEAR Shoemaker even landed on an asteroid Eros. In 2006, JAXA's (Japan Space Agency) Hayabusa became the first spacecraft to land on and take off from an asteroid. It returned to Earth in June 2010, and brought the samples. NASA's Dawn mission, launched in 2007, began exploring Vesta in 2011. One of the most important tasks for the Fobos-Grunt, Russian sample return mission (launched November 2011), was to collect samples from Phobos' surface to be delivered back to Earth. The return vehicle was supposed to return to Earth in August 2014, carrying up to 200 g of soil from Phobos, but unfortunately the vehicle felt back on Earth. In 2012, Planetary Resources announced plans to send a mission to a space rock to extract water and mine the asteroid for precious metals (rare Earth) [2]. On 12 November 2014, ESA's Rosetta mission soft-landed its Philae probe on comet 67P/Churyumov-Gerasimenko, for the first time in history such an extraordinary feat has been achieved. Sampling the material was not planned, only the subsurface investigation and probing. NASA has begun to work on plans for its own asteroid-capture mission. In view of the above, protection of sample oriented technologies should attract a growing circle of main players. The above indicates that methods and devices for obtaining samples from extraterrestrial bodies are likely to become financially advantageous enterprise. This commercial activity is executed mostly in outer space and hence the problem of applicable law and possible ways of obtaining monopoly for advantageous technical solutions is not trivial. Still, the activity results in obtaining valuable products. Putting some effort into identification of possible ways of IP protection – at least partial – is therefore worth at least consideration. Let us consider a method claim for obtaining samples of asteroids involving three steps:
that have spurred the economy. The most impressive examples from the space sector are infrared ear thermometers, improved Radial Tires, freeze drying technology, powdered lubricants, portable cordless vacuums or water purification systems. Aural thermometer developed by NASA uses infrared astronomy technology to measure the amount of energy emitted by the eardrum. For the Apollo space mission, NASA required a portable, self-contained drill capable of extracting core samples from below the lunar surface. Black & Decker designed the drill's motor and insured minimal power consumption, which led to the development of a cordless miniature vacuum cleaner called the Dustbuster. (Nasa spin-off data 1981). NASA engineers are developing a complex system to sustain human life on the International Space Station and, in the future, on the Moon or Mars. This system should use available resources by turning wastewater from respiration, sweat, and urine into drinkable water. Commercially, this system is benefiting people all over the world -who need affordable, clean water, especially in regions where water may be heavily contaminated. (Nasa Spinoff data1995, 2006). Products designed for space exploration fulfil the construction requirements that are adequate to the extreme conditions in space, such as very low temperatures and significant temperature gradient depending on the Sun position, vacuum, different from the Earth's gravitational field, cosmic dust pollution, strong cosmic radiation. Any instruments, devices and elements are designed, tested and assembled with extreme precision, using specialized and dedicated hardware, and under very strictly controlled conditions. Instruments exploring interplanetary space are exposed to many threads, such as collision with minor bodies, strong magnetic storms, increased solar activity, solar wind streams. Therefore, space engineering requires the developing of very high-performance products. Space technology, components or applications constitute a huge potential for terrestrial applications. There are space agencies activities specifically directed to the exploitation of space technologies to non-space applications [1]. NASA has documented nearly 1800 spin-off technologies in a variety of disciplines and industry branches, as medicine, transportation, new materials, security, miniaturization or computer technologies [4]. The technology transfer process consists of extracting and marketing space technologies, services and applications, for a purpose which was not originally intended. European Space Agency (ESA) has its own Technology Transfer Programme, which provides a number of opportunities to entrepreneurs to take advantage of the wealth of available technologies, expertise, patents, systems and services from ESA's space programmes [3]. At the ESA level support for the technology transfer is provided in a number of different ways. The most popular in space community is Technology Transfer Network and its technology broker companies throughout Europe, than collaboration with national technology transfer initiatives in ESA Member States is worth mentioning. Around Europe there are business incubation centers dedicated to space SMEs. There is a need to emphasize that ESA develops highly sophisticated technologies and applications to support its space programmes, many of them resulting in intellectual property. ESA is managing IP and commercializing it to the non-space industry, in order to make sure they are exploited to their full potential.
A sending device X to the asteroid, B taking sample, and C delivering the sample back. Such a method might be patentable providing device X and all 3 steps are fairly more precisely defined and naturally on the condition that it is novel and involves inventive steps. Naturally sample would have to be extremely valuable to make the whole process economically justified. At least in some patent systems products obtained directly by claimed method are also protected. Hence obtaining a valid patent for a given method of obtaining samples may provide an enforceable protection for purely space-applied technology. Naturally, things would complicate if steps regarding sending and step regarding delivering back would be executed in different legal systems. The mentioned issue is surprisingly serious as asteroids exploration and taking samples from small bodies of our Solar System are becoming increasingly more important. Exploring asteroids, as well as the Moon subsurface activities have set new directions and new challenges in the space technology transfer. Preparation to the Moon subsurface exploration requires three
5. Space exploration and benefits for mining industry on Earth At the moment we are facing an increase in investments by governments and private stakeholders in space exploration. In the newest ESA Space Exploration Strategy the mission theme of sustainable exploration of the Moon is integrated in the strategic exploration approach for Europe. A guiding principle is to implement exploration missions with humans and robots in a coordinated manner. The ESA exploration strategy considers the Moon as the next destination for humans venturing beyond Low Earth Orbit and an integral element of the roadmap towards human missions to Mars. The second important and crucial topic for the exploration space community is asteroid 3
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major actions. The first one is related to the technological challenge, especially for deep drilling or excavation process, what should be done by consortia composed of space hardware specialists and terrestrial mining industry members/specialists. The second action, is related to establishing appropriate conditions for socio-economic policy development for such activities, like regulations for selling goods obtained from the Moon or asteroids, which was mentioned above. Last but not least, is social impact, showing the importance of exploration by measurable benefits to mankind will contribute to the growth of acceptance for space activity. Restrictions and limitations for „mining” in space result in the new terrestrial mining approach. The mining industry has lagged behind others in technological advancement, this sector is often criticized as an industry where innovation and technological changes are resisted and implemented very slowly. There is a number of intrinsic features of mining that make technological changes difficult. The most important are remote areas, hazards and scale. 40% of the global economy is directly or indirectly dependent of the mining sector, according to the report [6] The future of the mining industry: opportunities, challenges and responsibilities (2012). Global mining, as well as the energy industry is currently experiencing its biggest boom in 50 years, as the demand for resources is driven by industrialization and urbanization of China and India. In spite of the positive market situation, the industry is facing major challenges. The crucial feature is that mining industry is using more and more energy to dig out metals out of the Earth and is thereby driving up prices and costs. Mining companies today face a complexity of problems: not only the spiralling costs, and government intervention, but also deepening pits, lower ore grades and declining productivity. Space technology transfer – Moon mining can bring more benefits on Earth for that sector. To increase the productivity, to boost efficiency and profitability there is a need to draw inspiration from other sectors, especially from space sector and look towards automation, IT and smart technologies. Investigations into new functional materials for use in mining equipment and continuous improvement of existing and development of new intelligent IT systems and sensor technologies are key actions needed. Challenges from the new technologies will additionally affect the demand for mineral raw materials. Non-energy and non-agricultural raw materials underpin the global economy and are vital for the EU's economy [7]. New technologies in almost any field of the daily life will require increasing input of crucial raw materials. Developing fully automated and autonomous machinery fully integrated in the overall
mining processes is needed. This machinery should aim at selective mining with boundary layer and material detection. Local navigation systems at the face together with collision avoidance and machine guidance systems will contribute to autonomy of the machines and to eco-efficiency. The safety issue should be also taken into consideration, using the space technology achievements (remote and autonomous operations) mining disasters can be prevented, or through well designed emergency preparedness planning, mitigate or minimize their effects. The necessary level of automation in mining operations regarding also health and safety and logistics issues can only be achieved by reaching a higher level of integration in all parts of a mine. Fully integrated underground technologies and processes for diagnosis, maintenance and extraction as well as communication [2], health and safety issues are the key for the success. The inspiration can also came from space sector and mission planning. 6. Conclusions It has been shown that activities executed in outer space are in difficult relation with patent systems. It should be pointed out that patent protection supports development of technique and the techniques for exploration of extraterrestrial bodies are definitely worth supporting. To this end a way of argumentation towards covering methods of obtaining samples from outer space by method claims has been demonstrated. However, it is suggested that further development of law towards patent protection in outer space is more than advisable. References [1] J. Bessen, J.B. Love, Make the patent polluters pay: using pigovian fees to curb patent abuse, Calif. Law Rev. Circuit 4 (2013) (2013) 84–91. [2] ERA-MIN Research Agenda – Roadmap, 2013 http://www.era-min-eu.org. [3] ESA BR-303 Agenda, A Document by the ESA Director, ESA, 2015. [4] NASA Spinoffs data, www.spinoff.nasa.gov. [5] Á. Sánchez, P. Hortal, D. Cuesta, Patent Costs and Impact on Innovation International Comparison and Analysis of the Impact on the Exploitation of R & D Results by SMEs, Universities and Public Research Organisations, Publications Office of the European Union, 2015. [6] The Future of the Mining Industry: Opportunities, Challenges and Responsibilities, (2012) http://nordicinnovation.org/news/the-future-of-the-mining-industryopportunities-challenges-and-responsibilities. [7] The Space Economy at a Glance 2014, OECD Publishing, OECD, 2014.
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