S. Wood
Vela Wood,
Keywords:
The Temporary Presence Defense (TPD) to patent infringement was originally created to protect maritime vessels engaged in international trade: UK (1852 Parliament enacted law) and US (1856 SCOTUS decision in Brown v. Duchesne). Subsequently, 1925 revisions to the 1883 Paris Convention for the Protection of Industrial Property expressly codified the TPD for land, sea, and air vehicles in Article 5ter. Many States party to the Paris Convention, including France and the US, have extended domestic TPD laws to cover space objects. Translated into English, French IP Code Article L. 613-5(e) reads “patent rights shall not extend to: […] e) the objects intended to be launched into outer space.” The 1982 revised NASA Act, Title 51 U.S.C. §20135(j) extends the US TPD, Title 35 U.S.C. §272, to include “any object intended for launch, launched, or assembled in outer space.” In Hughes Aircraft Co. v. US, Hughes claimed five UK registered satellites infringed their US patent on spin-stabilized satellite navigation. However, the Hughes Court held that the 1982 NASA Act transformed the spacecraft brought into the US after 1981 for launch into “vehicles” for TPD purposes, which spacecraft would have previously been properly deemed as cargo intended for use, i.e., launch.