united-states intellectual-property patents legal-history space
Why does the US patent law have a section about inventions in outer space?
<p>I came upon a curiously <em>exorbitant</em> statute, <a href="https://www.uspto.gov/web/offices/pac/mpep/mpep-9015-appx-l.html#d0e302614" rel="noreferrer"><em>Inventions in outer space</em> (35 USC 105)</a>. To summarize my question, <strong>what was the story and the rationale behind this law?</strong></p>

<p>The section reads, in part:</p>

<blockquote>
  <p>Any invention made, used, or sold in outer space on a space object or component thereof under the jurisdiction or control of the United States shall be considered to be made, used or sold within the United States for the purposes of this title, except with respect to any space object or component thereof that is specifically identified and otherwise provided for by an international agreement to which the United States is a party, or with respect to any space object or component thereof that is carried on the registry of a foreign state in accordance with the Convention on Registration of Objects Launched into Outer Space.</p>
</blockquote>

<p>It made me even more curious that this section was alone by itself added by <a href="http://www.spacelaw.olemiss.edu/library/space/US/Legislative/Public_Laws/101-580%20-%20patents%20in%20Outer%20Space.pdf" rel="noreferrer">the bill S. 459/HR. 2946 (Public Law 101-580, 104 Stat. 2863)</a> in 1990.</p>

<p>As far as I know (I well may be wrong), (1) there are no special provisions in the 35 USC, the patent law, about inventions on a vessel under the US flag, and (2) the flag jurisdiction generally applies to outer space vessels, according to the Outer Space Treaty of 1967 (see <a href="https://law.stackexchange.com/a/658/3565">this</a> and <a href="https://law.stackexchange.com/a/25084/3565">this</a> answers; 18 USC 7 establishes US maritime <em>criminal</em> jurisdiction over US space vessels; I cannot readily provide same for civil jurisdiction but I believe it also exists).</p>

<p>So <strong>why is there a specific statute for inventions made on a US vessel in outer space, while there is apparently none for such a vessel in international waters or airspace?</strong> My understanding is that the patent law applies to the latter, so <strong>why did the former require a specific act of Congress?</strong></p>

<p>The date of the law, 1990, falls “nicely” between the President Reagan's announcement of the plans for the ISS in his State of the Union address in 1984 and the launch of its first module in 1998, but many events would fit no less nicely in a 14-year time span. But still, my guess is that the act was somehow prompted by a huge international space operation, and I can think of no other matching development at the time.</p>

<p>For purposes of determining inventorship, the <strong>location the invention was made in is irrelevant</strong>. Before the AIA, the location of a publication or other public knowledge was relevant (in the U.S. vs outside the U.S.) The AIA did away with that distinction. Pre AIA 35 USC 102 had two reference to "in this country". Post AIA there is no distinction made as to where the prior art was known or used or on-sale. I think this makes the provisions you are looking at moot, at least in terms of patentability. Before AIA, adding in the space provision would make a use in space a use in the U.S. and therefore potentially prior art. Now it is potentially prior art without any issue of having happened in the U.S.</p>

<p>PRE AIA 102</p>

<blockquote>
  <p>A person shall be entitled to a patent unless —</p>
</blockquote>

<p>(a) the invention was known or used by others <strong>in this country</strong>, or patented or described in a printed publication in this or a foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country <strong>or in public use or on sale in this country</strong>, more than one year prior to the date of the application for patent in the United States, or</p>

<p>POST AIA 102</p>

<blockquote>
  <p>[a] person shall be entitled to a patent unless—</p>
</blockquote>

<p>(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.</p>
