The following is a summary of IALPG’s research “New Ideas and Ownership in Outer Space” available from the proceedings of the 2025 International Astronautical Congress.
1. The significance of questioning patents in space
The World Intellectual Property Organization–WIPO– and the European Commission claim intellectual property can benefit everyone. Presented at the 2025 International Institute of Space Law’s symposium on the law of outer space, IALPG’s research paper examines the merit of such claims. Like WIPO and the European Commission, IALPG’s paper considers not only benefit to the creators of ideas and expressions but society generally – a principle paramount under international space law.
The research, led by Special Counsel Scott Schneider, applies economic principles to the field of intellectual property, particularly in the context of social and legal challenges posed by the current patent frameworks. While governments continue to experience an increase in filings of space-related patents, much of the literature and commentary concerning patents and space activities presumes intellectual property frameworks are necessary for progress in space affairs.
Such consequentialist positions fall short when scrutinised, as shown in IALPG’s analysis. The research then proposes a revised approach to intellectual property for space activities in the form of an “Expression-Exclusion Divide”. A primary limitation is the analysis having been conducted through secondary resources and inductive reasoning. Subsequent research phases will examine specific case studies in space business for empirical findings. This initial phase of the research, notwithstanding, demonstrates that treating ideas as expressions, rather than as property, is in the interests of business, social welfare, public administration and international space law.
2. Ideas and the non-ideal
A patent is a state-sanctioned exclusive right to an idea expressed as a practical process (i.e. technology) which limits competition for a prescribed period of time. Patents are based on national jurisdiction, meaning a patent granted by the French government is not, on its own, enforceable in the United States. Likewise, in the context of space activities, a French patent is not, all things equal, enforceable on a spacecraft registered to the United States. Patents are one form of intellectual property, a concept which WIPO defines as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce”. WIPO’s definition presumes intellectual property is a natural phenomenon. It is not.
Without codified law intellectual property would not exist. The same is not true for property generally. While law does influence who has rights to property, and the extent of those rights, the concept of property itself is an economic phenomenon, not a legal one. Property is evident among society when humans engage in exchange rather than violence to resolve conflicts over scarce resources. This has occurred in many regions of the world in many eras of history without legal frameworks in place to ensure same. The concept of property is perhaps most plain in the natural rights approach to law where the extension of self-ownership holds that any artefact, whether moveable or non-moveable, with which the human body can interact on an exclusive basis is capable of becoming property. The key quality here is “exclusivity”, a foundational element of property which is absent when it comes to creations of the mind.
“Creations of the mind” does not refer to the output from an idea. A patent does not protect the rights to a completed innovative contraption (those rights are protected under a state’s general property laws), but the mechanism for expressing the idea needed for that contraption to be completed. When someone transposes what is in their thoughts into the outside world, they have expressed an idea. Unlike property generally, where any one article of which is limited in quantity, once an idea is expressed, it is perpetual. The idea behind that expression is both non-rivalrous and non-quantifiable. As such, the presence of an idea among society cannot be determined by a discrete amount, by a degree of abundance or by geographical location. Once expressed, an idea is no longer scarce or isolated. The law attempts to limit the perpetuity and universality of particular ideas through enforcing legal frameworks. These legal frameworks, creating scarcity and exclusivity in ideas, are what establish intellectual property.
3. Intellectual property from monarchy on land to multi-governance in space
Due to the inherent differences in intellectual property and property generally, namely the origins of exclusivity and scarcity, most arguments in favour of patents derive not from an economic standpoint but from a consequentialist perspective. That is to say, exercising a monopoly in expressing an idea is necessary for technological progress as there is, otherwise, no incentive for individuals to express the ideas which lead to new technologies. Yet, the history of patents (and copyrights) reveals that the origins of intellectual property have little to do with protecting creators or for stimulating social progress.
For instance, emperors and monarchs during medieval Europe granted monopolies to select individuals for a fee as a means to earn revenue. In England, the monarch issued an open notice, referred to as a patēre, so the public would be aware of the new monopolies (in Latin, “opened” translates as patēre, from which the English term “patent” originates). These patēre were often used to fund military conquests as well as being granted to pirates to sanction the looting of foreign-flagged vessels. Jumping forward into the late nineteenth century, beginning with the Paris Convention for the Protection of Industrial Property, several international frameworks made steps towards coherence among the state-based nature of intellectual property. Such frameworks are directly relevant to space activities by virtue of article III of the Outer Space Treaty, under which space law must be read with general international law.
The Outer Space Treaty is the primary legal instrument governing space affairs, and its very first article poses several questions on intellectual property, or at least to the application of intellectual property in outer space:
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the requirement that “[t]he exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries” is not accompanied by what exactly is in the “interests of all countries”, or who determines what those interests are. That patents are awarded by states is ground for accepting national governments as the decision makers on what benefits society, at least in terms of technical progress and creativity. However, awarding privilege to a patent holder for one jurisdiction is not in the interests of all countries if governments, researchers, entrepreneurs or consumers of foreign countries cannot also express those ideas in space
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intellectual property is inherently discriminatory. They favour certain individuals with a monopoly, or a licence to participate in a monopoly. Article I of the Outer Space Treaty requires space be free for exploration and use without discrimination and on a basis of equality. Patents, then have the very nature to discriminate against those who may seek to freely explore with or express a particular idea in space.
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under article I, space activities must not hinder the “freedom of scientific investigation”. Yet, a firm or research organisation prevented from using patented information in the pursuit of scientific endeavour is not afforded this freedom.
Article VIII of the Outer Space Treaty brings the territorial jurisdiction of intellectual property beyond Earth and into outer space, at least for objects “launched” from Earth. The implication of article VIII for intellectual property in space is akin to the flags of convenience with vessels on the high seas. However, there are several challenges to intellectual property in space beyond the jurisdictional issues if the wellbeing of society is truly one of the goals of the Outer Space Treaty.
4. Some Challenges with Patents in Space
While said to stimulate innovation, patents create significant power imbalances and legal inconsistencies hindering, rather than promoting, technological progress. Posing significant barriers to entry is the function of a patent. A consequence being the larger and more established firms using patents as a strategy to block new entrants coming into an industry. One common and highly effective strategy to this is by erecting series of overlapping patents. Such “patent thickets” not only impose an initial barrier to entry for entrepreneurs but make navigation too complex and expensive for the new entrants who do decide to endeavour into the arena of patents. Space products, in-situ-produced or otherwise, are analogous to computers and smartphones to the extent that to design and market such goods is extremely difficult for emerging firms. Those seeking to do so are disadvantaged when it comes to accessing the necessary resources to navigate and comply with the layers of patents held by existing firms.
Patents favour only those who invent, not all those who innovate. But technological progress comes in many forms, not only by inventing. As patent frameworks do not apply to abstract ideas or laws of nature, individuals who spend effort, resources and time on original thinking to describe our reality and lay the groundwork, which technologists then use in commerce, are not afforded any exclusive privilege to their ideas. This means the law does not recognise the labour in the vein of Einstein, Tsiolkovsky or Oberth, but only of those who innovate using the discoveries of such theorists. Moreover, seldom is the case where a patent holder’s claim against another is due to the other party copying a patented idea. Rather, a majority of cases (and almost all cases against an entrepreneur rather than against an established firm) are due to infringement in absence of copying. In other words, smaller firms may express an idea which is unbeknown to them protected by a patent. Although cross-licensing is one mechanism entrepreneurs and emerging firms use to avoid infringements, larger firms rarely engage in this practice with new market entrants.
Several legal contradictions exist if states were to apply intellectual property law as intended and in a consistent manner. For one, WIPO itself acknowledges the tension between patent and antitrust law, suggesting intellectual property must encourage creativity and innovation, while achieving “the right balance between the interests of innovators and the wider public interest”. A second legal contradiction is how the frameworks for intellectual property facilitate, rather than prevent, infringement claims and disputes. The complex nature of the intellectual property frameworks with the large number of filings thereunder, pose challenges for entrepreneurs and scientists to know whether their work may be, or is, a patent infringement. Safeguarding against potential and occurring infringements costs money, labour and time, meaning entrepreneurs and scientists allocate resources away from their business operations and research endeavours and, as a consequence, away from the interests of consumers and scientific advancement.
Why don’t the above arguments apply to property generally? Property does, indeed, discriminate. So, why isn’t the concept of property also contrary to article I of the Outer Space Treaty? WIPO states “intellectual property rights such as copyright, patents and trademarks can be viewed like any other property right.” Beyond the matters of scarcity and exclusivity discussed above, a third important difference is that enforcing general property rights does not restrict the property rights of anyone else. If Alfred owns a resource, that does not restrict Bob’s ability to own or use other resources (this is distinct from how Alfred uses his resources, which could infringe upon Bob’s rights). Conversely, if Alfred holds a patent, Bob is then restricted from using Bob’s resources to the extent he were to express Alfred’s patented idea in an applicable jurisdiction. The private law argument in support of this position is that Bob, by using an idea patented by Alfred, would be causing Alfred potential or actual financial loss. However, this does not explain why other forms of non-violent competition in business and innovation are discouraged by law, a response elaborated upon below.
5. Benefits of the Expression-Exclusion Divide
A common justification for intellectual property arises from the supposedly unanswerable question of how one would ever obtain sustainable investment for innovating if all the money spent in developing that innovation would lead to ideas which will be copied and marketed by other firms, and in many cases for a lower cost. To ask this is to forgo the first mover advantage, where the first firm to demonstrate progress (or the feasibility of progress) on a new idea is the firm which receives capital. In addition, there are many ways businesses can generate returns to shareholders and other investors without relying on government-issued monopolies for core aspects of their business. Rather than making expenditures in filing and enforcing patents, companies can and do, as has been common practice for centuries, invest in production structure, research and development, marketing, hiring and so on. The reason why firms with patents attract investment is precisely the same reason a business would attract investment if it were the only firm allowed to practice any other competitive aspect of its operations under an exclusive privilege. A patent monopolises one piece of a firms’ business, rendering that firm the only market actor allowed to use a particular idea for a certain timeframe. By this logic, the relevant question then becomes, why are monopolies not justified for expressing ideas which lead to innovations in matters of the strategic location of infrastructure, staff composition, the structure of production, more adequate contracting, novel insurance practices and so on. Respecting the Expression-Exclusion Divide ensures no slippery slope by bringing space business into a more competitive arena rather than remaining prone to monopolistic, anti-competitive privileges in ideas.
While patents are transparent insofar as they promulgate the information relevant to a potential innovation, they are simultaneously prohibitive. Were individuals free to use ideas, more actors are incentivised to enter a market to refine and improve upon those ideas. The more actors in a market being creative and developing what others have achieved before them not only benefits consumers but also first movers, and does so in the absence of a patent. A larger market also means there is more information available to producers on how to best respond to customers and how to increase a customer base. The case of Steve Jobs and Apple is so famous because it is such a rare occurrence. In fact, relying on patents to drive innovation has no basis in research, as found by several meta-analyses conducted on the topic. A simple, but representative, example is the many patents taken out by the Wright brothers in the United States surrounding Kitty Hawk’s flight. These patents not only blocked out market competition but even stifled government programmes and military initiatives, that is until the government convinced Orville and Wilbur Wright to join a patent-pool. Meanwhile, in France the absence of the Wrights’ patent thickets was paired with significant developments in aviation such as the first 60-minute flight, the first international and overseas flight and the technology accommodating passenger transport. In fact, during the heyday of aviation from the late 1930s to the mid 1970s, it was unusual for aircraft developers to obtain patents for their innovations. In the automobile sector, firms are known to actually encourage competitors to take advantage of their patent portfolios as a means to stimulate consumer demand and the flow of capital, two leading examples being Volvo and Telsa. Market activity not only benefits firms but also consumers and, as such contributes to economic prosperity.
Disputes would also be less likely in an Expression-Exclusion Divide for space. There would be no patent trolls, for one. Creators need not be concerned of possible infringements, bringing focus on private law (i.e. contracting or tort). As such, dispute resolution and the reduction of transaction costs is also aided. Firms would be spared much of the hassle of engaging lawyers and insurers to manage the complex (and often conflicting) intellectual property frameworks and, instead, could rely on traditional out-of-court dispute resolution processes should a property matter arise. Avoiding patent disputes may also increase the likelihood of cross-firm collaboration, rather than mutual antagonism. In relation to the Outer Space Treaty, the Expression-Exclusion Divide would prevent states and non-state space actors to attached a domestic jurisdiction to an idea, particularly relevant when it comes to the national laws governing space objects under article VIII of the Outer Space Treaty. Moreover, article I of the Outer Space Treaty’s benefit sharing principle is also facilitated by the Expression-Exclusion Divide, ensuring individuals, firms, researcher organisations and states are free to express ideas in, or derived from, outer space.
6. Concluding Remarks
As individuals mutually respect one another’s appropriation and exclusive control over scarce items–that is, to acknowledge property rights–, the incentive to use violence for resolving those conflicts is drastically reduced. With this in mind, it is understandable, even expected, that decision-makers in society should seek to build upon this positive trend by treating ideas as property. However, economic principles do not derive from political decree. The law cannot create property. It can, however, create scarcity and when is does so in what is otherwise abundant, the general public is more likely to be harmed than benefited. Abundance enables greater choice and the greater choice in a society means a higher degree of economic prosperity. With economic prosperity comes broader cover of welfare. Space entrepreneurs should be free from challenges in contributing to economic prosperity compared to their counterparts in Earthly innovations. Before implementing, or dismissing, the Expression-Exclusion Divide, a comprehensive cost-benefit analysis is needed in the domain of space-related patents and societal benefit. Or, more particularly, patents and their effect upon fulfilling the principles of the Outer Space Treaty.
Innovation is aided, not hindered, by the free-flowing and cross-dissemination of ideas. Much progress throughout history came about without any monopolisation of creations of the mind. The law has come to protect some ideas supporting a business but fails to protect individuals and firms spending resources in most other business practices, including basic research which is used by others to develop commercial or even patented information. Because intellectual property is not property (despite WIPO’s claim) and poses challenged to innovation and fulfilling the Outer Space Treaty’s core principles, the space community may do well to investigate what the wider social benefits of intellectual property are against to it’s function as a state-awarded anti-competitive privilege to the few. With the Expression-Exclusion Divide, space would be closer to an equal playing ground for everyone. Treating ideas as ideas rather than as property in space affairs means intellectual property better safeguards property rights all the while complying with the freedom and benefit sharing principles of article I of the Outer Space Treaty.
It is never easy to revisit the merits of a legal system which has been in place and expanding over centuries. This is especially so when entire industry segments exist of lawyers, arbiters, academics and business people, with many individual actors relying on intellectual property for their livelihoods. Yet, the integrity and effectiveness of patents have already gone through several eras of questioning, not least in the advent of genome mapping, nanotechnology, generative artificial intelligence and, perhaps most famously, the internet. A re-evaluation of the purpose and effectiveness of patents as space activities become more commonplace for small business and research organisations should be welcomed in any honest discourse. This is especially so when the interests of society are in mind, as is the case with activities under the jurisdiction of the Outer Space Treaty. An Expression-Exclusion Divide for managing ideas other than as property for in-space affairs benefits business (and innovation), is morally sound, streamlines public administration and better ensures compliance with the provisions of the Outer Space Treaty.
Select Resources
Books, Articles and Online Materials
- Boldrin, M. and Levine, D. K., “The Case Against Patents” 27(1) (2013) Journal of Economic Perspectives
- Chandra, Rasjshree, Knowledge as Property (Oxford University Press, 2010), ch 4
- DeLong, James and Tom Palmer, ‘Debate: Intellectual Property Must Be Protected’ Reason, (October 2018) https://reason.com/2018/09/29/proposition-intellectual-prope/
- Kinsella, Stephan, Centre for the Study of Innovative Freedom https://c4sif.org/
- Machlup, Fritz and Edith Penrose, ‘The Patent Controversy in the Nineteenth Century’ (1950) 10(1) Journal of Economic History 1
- Mergers, Robert P and Nelson, Richard R, “On the Complex Economics of Patent Scope” (1990) 90 Columbia Law Review 839
- Moser, Petra, “How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs” (2003) Working Paper 9909, National Bureau of Economic Research
- Palmer, Thomas Gordon, ‘Are Patents and Copyrights Morally Justified? The Philosophy of Property Rights and Ideal Objects’ (1990) 13(3) Harvard Journal of Law & Public Policy 817
- Robinson, Joan, The Accumulation of Capital, Basingstoke (Palgrave Macmillan, 1956), ch 9
- World Intellectual Property Organization, Intellectual Property and Space Activities (WIPO, April 2004).
Treaties and Legislative and International Instruments
- Convention Establishing the World Intellectual Property Organization, opened for signature 14 July 1967, 828 UNTS 3 (entered into force 26 April 1970)
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, opened for signature 27 January 1967, 610 UNTS 205 (entered into force 10 October 1967).