Czech Yearbook Vol. 4 2013

JAN ONDŘEJ

CYIL 4 ȍ2013Ȏ

including on celestial bodies or on spacecraft, which are

under the jurisdiction and

control of one or more member states

in accordance with international law”. The

proposal of the EC/EU regulation contains the formulation

jurisdiction and control

deriving from Article VIII of the Space Treaty. Conditions for granting a patent in

the proposal are the same as in Articles 52-57 of the European Patent Convention

of 1973.

The US Patent Law and the proposed EC Regulation are based on jurisdiction

and have therefore the same foundation. Concepts of protection of the rights

to inventions differ between the USA, Europe and Japan, and these differences

can lead to certain difficulties. The US system is/was based on the

principle first to

invent

. It means that the decisive point is to prove who first made the invention. The

European and Japanese regulation is based on the

first to file

principle

. The decisive

principle for protection is the fact of who first had the invention registered. Under the

framework of the International Space Station, where the USA, Russia, European states,

Japan and Canada participate, the problem arises of safeguarding the secrecy of certain

information for reason of its protection. Secrecy is not always possible,

because the

members of the crew from various partner states have access to all kinds of information.

Protection of intellectual property is necessary during the conduct of space

activities – apart from other reasons, because of the ever increasing participation

of the private sector in space activities, which will require adequate guarantees of

protection of their interests according to national or international legislation.

The above mentioned EC regulation on patents, which refers to inventions made

in outer space, could strengthen the possibilities of protection of inventions which

are being made in space. So far this is only a proposal which has been discussed in the

EU Council since 18 May 2004. It is, therefore, questionable when the regulation

will be passed.

Conclusion

We can conclude by saying that private property ownership can be applied in

relation to outer space and celestial bodies. The application of these claims, however,

should be in accordance with the prohibition of appropriation which is expressed

in the basic document which regulates the area of outer space and celestial bodies,

that is, in accordance with the Space Treaty of 1967. This treaty contains the basic

principles which can be used without problem also for future development. The

advantage of the general regulation which came into existence in a particular historic

period is its possible application to new specific issues that did not exist in that earlier

time. The pre-condition, however, is interpretation and application in accordance

with the subject and purpose of the treaty. We can state that the basic provisions of

See Sgrosso, G. C. Applicable Jurisdiction Conflicts in the International Space Station. 43rd Colloquium

on the Law of Outer Space, Rio de Janeiro, 2000, p. 181.

ibid

., p. 179.