Hulsey on IP Space
High-powered intellectual property lawyer William Hulsey III, joined the ever-gracious Dr. David Livingston this Sunday (2/26) on The Space Show for a discussion about intellectual property rights on earth and in space. If you missed it, here's a quick summary. (I'm listening over lunch so please excuse any crumbs and spilled Snapple...)
Why do we need IP rights?
Bill began by referencing the software industry which has emerged in the last 50 years. We've gone from a world of wanting no protection to an area where IP is very important as one of the tools used to compete and establish new marketplaces. Another example: IP rights on the Internet. The Internet industry is still figuring out what it is and what its capabilities are. With space, we find ourselves in the very early stages with the establishment of a space economy. Governments are not the only vehicles or institutions, and when people make investments, they want intellectual property protection, particularly where technology is involved. People want the return on their investments to be assured and establishment of a set of rules by which to operate and conduct business.
In the late 1700 the US put in the constitution a patent and copyright system. In 1797 Thomas Jefferson became first commissioner of patents. With the establishment of a patent system, people know there is a set of rules that provides investors with legal instruments to protected their achievements.
The initial statutes and regulations are necessary for commercial activity to begin. Later judicial decisions interpreting statutes and modifications of statutes occur either at the same time or in response to industrial activities. It's like a board game. People who invest need to know the rules protect their investment.
What about space? Two areas of concern for Bill: One, the "mindframe" and age of the laws that presently exist. He cited Moon Treat and Outer Space Treaty which were established at a time when we "had not even reached the apex of the Cold War." The res communis approach to the establishment of existing laws for exploration and exploitation of space were of a different time. Now there is no Soviet Union; we also have half a century of fast-paced entrepreneurial activity and IP development which is not reflected in existing law.
Also, we have an industry that is changing dramatically -- an industry developed in response to Sputnik. The laws come from a different place and mindset.
Yes, there is 35 USC 105 which addresses extraterrestrial patents; also, the establishment of the EU patent will deal with inventions developed on a celestial body.
With regard to international patent, copyright and trademark laws, in last 20 years there has been a "substantial effort" to "harmonize the effects of international commerce here on earth" but "there has not been a focus on the application international property laws to a new space economy."
At the UN "the focus is not as entrepreneurally and small business focused as it could be."
But Bill does not think a separate set of laws is the answer.
Addressing IP as a way of promoting the establishment of space commerce and having a clear understanding of the rules of engagement relative to inventions is an important piece in the development of space commerce.
He referred to the idea of space as an "Eighth Continent" and spoke of the deep sea; but was not sure a whole separate body of IP law for space was necessary.
He outlined some hypotheticals regarding filing issues in connection with inventions on a space station.
A listener asked about patent trolls (individuals who derive patents for the sole purpose of generating revenue through license fees where they do not manufacture the patented product). There is change afoot.
When asked whether US IP law should be the model for IP space law, Bill spoke of an international economy leading the space economy. "It's a totally new day." He spoke of harmonization over pursing a U.S. agenda.
He noted the milestone hit last week of earth's population reaching 6.5 billion people and that the US makes up only 5 percent of the population. To pursue a US-centric agenda in protecting property rights does not make a lot of sense. What makes sense is that we have relationships with all the key players.
As to IP and Bush's vision, he said China, Japan, Europe, Australia, other counties have their own visions -- it's not just the US. Commercial collaboration is part of the vision; it is necessary to respect IP rights of companies that want to collaborate in the US and internationally.
He spoke of the Department of Defense's transformation regarding IP rights. In 2001, the DoD's report Intellectual Property: Navigating Through Commercial Waters addressed how DoD could more successfully negotiate with commercial companies. In 1998, 15% of R&D in US was done by DOD, and private industry exceeded 70-80%. DoD realized private industry was getting in the way of Defense acquiring the sophisticated technology it needed for military purposes. As a result, there has been a change at DoD.
Bill answered a question about forums for redress of infringement claims. The forum depends on the infringement, where, any agreement between the parties, etc. This is a top issue.
What about landed (vs. intellectual) property rights? (Virgiliu Pop sent in that question.) Bill said he is not a real estate attorney but philosophically, within certain limitations, "to have landed property rights is certainly consistent with the promotion of space economic development."
Then our host mentioned that when he was trademarking "The Space Show" ((with the help of a lawyer of course) he found the process "really weird" and "irrational" and "very complicated." How do you learn more about IP?
Bill said it is amazing to see how much to government and IP organs have reached out. Two major pushes: an international focus on protection of IP rights. At same time, an international focus on educating people, particularly in the last five years, starting with the World Intellectual Property Organization website which includes links to patents offices of all countries that are WIPO members. He also cited the European Patent Office; site and also recommended Stopfakes.gov , which is supported by Commerce & other interested federal agencies, and provides information on patents laws of other nations as well as the U.S.
And he spoke very highly of the United States Patent and Trademark Office (USPTO), which he finds does a "tremendous job" on their website with support of individual inventors, not just big business like IBM or Microsoft. And he recommended signing up for free USPTO seminars, such as one on intellectual property and China March 2- 3, 2006 (in Atlanta) and other free offerings. If you want to learn about how to file for trademark and patent protection, "the tools, the knowledge are available." (Although he did not suggest you fire your IP lawyer.)
Finally, sounding like the IP lawyer he is, Bill concluded: good fences make good neighbors. Which I suppose is true in space too.
Listen to the show.