Show There are 4 general categories of intellectual property:
The most common type of knowledge protected by trade secrets is ‘know-how’ (any unique knowledge and/or skills regarding manufacture processes, products, services, etc.). Entrepreneurs interested in undertaking space activities, or in providing space-related services, will most likely ascertain certain proprietary knowledge during the development of their products that they may seek to protect as particular ‘know-how’. A trade secret has a lower threshold than that of patents or copyright: the secret being protected does not have to be ‘novel’ or ‘inventive’, and it is sufficiently secret if the information has not moved into the public domain. Furthermore, a trade secret does not require registration like a patent, and so it cannot be easily overturned: in fact, a trade secret is often referred to as an unregistered patent. Consequently, a trade secret can be protected for an unlimited period of time. Unlike patents, a trade secret does not require disclosure of information to a government authority. For more information on patents versus trade secrets, click here. Trade secrets become so in a number of ways:
The use of trade secrets is common in the aerospace industry, although protection of trade secrets concerning outer space, space objects, and private or international space stations remains largely unregulated.
If the cost of maintaining a trade secret is higher than its value, it is illogical to protect it via a trade secret. For example, if the secret could be easily discovered by independent discovery, accidental disclosure, or leaks. This is especially pertinent in larger enterprises, where multiple employees need access and there is a higher turnover of staff. Although conditions vary from country to country, article 39 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) sets out general standards regarding ‘undisclosed information’:
The TRIPS Agreement is an international agreement between all the member nations of the World Trade Organisation (WTO). As Australia is a member nation of the WTO, one can expect that Australia’s domestic policies will reflect the TRIPS Agreement. Trade secrets in AustraliaTrade secrets do not have a settled legal definition in Australia. Despite this, the value of trade secrets is recognised in both common law and the law of equity. In this situation, equity means a body of legal principles that operates concurrently with the common law on principles of fairness and conscience – for example, preventing ‘unjust enrichment’. As trade secrets are recognised in Australia, restraints of trade can be legitimately used in order to prevent the disclosure of trade secrets, or to prevent the use of trade secrets by employees in any subsequent business or employment. For example, NDAs or signed assurances that the secret will not be utilised in further employment. If contravened, these restraints can be pursued in court. As a member of the WTO, Australia is bound by the general provisions of the TRIPS Agreement, including mechanisms for administration and enforcement of rights and a rules-based system for the settlement of disputes (see Part III of the TRIPS Agreement).
The basic principles of the international patent regime is laid down in the Paris Convention for the Protection of Industrial Property and it is accepted worldwide. The Paris Convention regulates protection of ‘utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition.’ There is also a Patent Cooperation Treaty (PCT) which is administered by the Worldwide Intellectual Property Organisation, and enables automatic registration between member states. Characteristics of an invention under patent:
Patents in AustraliaAustralia is bound by the Paris Convention and the PCT, and therefore its own laws are consistent with these treaties.
Firstly, you cannot demonstrate, sell or discuss your invention in public before filing a patent application. If you do so, there is a possibility your application will be refused on that basis. If you want to discuss the invention with employees or business partners, it is important you endeavour to have them sign a confidentiality agreement before such discussions take place. Secondly, a patent application must be drafted and filed by a patent attorney. Fees may vary depending on the type and complexity of the application. It is recommended you seek professional legal advice to discuss options and associated costs involved in making a patent application. A patent will give you the right to stop others from manufacturing, using and/or selling your invention in Australia without your permission. You will receive the ability to licence the manufacture of your invention on agreed terms, and to take legal action against persons using your invention without your permission. In Australia, it is possible to receive either a standard patent or an innovation patent. Standard patent:
Innovation patent:
For a comprehensive list of the differences between standard and innovation patents, see the patent section of the IP Australia website. Before filing a patent, it is a good idea to file a provisional application. Provisional applications establish a priority date, which are useful if you need to prove you were first to create a new invention. Costs may range from $110 to $210, not including attorney fees.
If you want protection elsewhere you can either file separate applications in each country, or file a single international application under the Patent Cooperation Treaty through IP Australia, which gives priority when the patent is registered in that country. Costs may range from $370 to $470, not including attorney fees. A more detailed breakdown of prices can be found on the IP Australia website, here. There are several industry-specific challenges in regard to space related inventions:
A major problem is enforcement of patent rights, due to the characteristic of space being the ‘province of all mankind’, as stated by the Outer Space Treaty. If everything in space is owned by mankind, how can one country or another ‘own’ an invention in space?
Jurisdiction in regard to inventions made in outer space is ambiguous – what if there is a situation where space activities are carried out by partners who are nationals of different states? Who can file for a patent? Is there priority for one over the other? This problem has been resolved on the International Space Station by dividing the Station into ‘elements’, and the country of inventorship will be determined by the ownership and registry of the Station’s element in which the invention has taken place (Article 21 of the Intergovernmental Agreement).
Another problem is how to deal with instance of temporary presence of spacecraft and other hardware on the territory of a third state (e.g. from where the launch is organised) when the technology they carry might be infringing patent rights registered in that third state.
There is naturally a higher level of publicity in space related enterprises. An information release about the invention might be enough to meet the criteria of disclosure, which renders the invention non-patentable. Unfortunately many of these problems have not been resolved, especially in Australia where there are no provisions concerning the patentability of specifically outer space inventions. Australia also lacks a ‘temporary presence’ doctrine such as those operating in the US, France, and other states. These problems all have policy implications for many states, and it is something that would benefit from further clarification in Australian law. One of the major challenges to businesses regarding patents is the requirement that the patent be published, with competitors are able to access the invention, albeit not legally able to use the information until the patent expires. Once published, third parties have the option to design around a patent — or a third party from another country may use it (as patents must be filed in each country to be applicable, even with a successful PCT application). Some entrepreneurs in the space industry therefore find that trade secrets can more effectively protect their interests for a number of reasons:
However, it is true that there are also drawbacks to trade secrets:
ANGELS Aerospace is an enterprise which deals with production of remote sensing sensors, and believes that it has taken an innovative step in the technology. ANGELS Aerospace is a small enterprise with only five employees and so has only one contract for the technology – it’s products and business are not well known in the industry yet. ANGELS Aerospace decides that it will qualify the technology as a trade secret, as it cannot afford the attorney fees to file for an innovation patent. Furthermore, as it has only five employees it is relatively easy for the information to remain secret, and ANGELS Aerospace undertakes for each employee to sign a confidentiality agreement.
In this example, ANGELS Aerospace is a large, profitable and well-known enterprise which designs, manufactures, and launches rockets and aircraft. It has created a new way manufacturing rockets to be lighter without compromising its integrity, and increasing its propulsion capability. However, it is aware that there are several other enterprises who are attempting the same technology, and are likely close to success. ANGELS Aerospace employs 2000 people, and is worried about leaks concerning the design of the rocket. In this case, it would likely be decided to patent the technology because:
ANGELS Aerospace decides to file a provisional application with IP Australia to establish a priority date, then begins the process of drafting an application for an innovation patent with the help of a patent attorney.
The following IP mechanisms (copyright and trademarks) are legitimate means of protecting information, but are somewhat less applicable in the space industry. CopyrightDefinition: Copyright grants the creator of an original creative work exclusive publication, distribution, and usage rights.Copyright generally does not apply to inventions such as have been described previously. Examples of copyrightable work includes pieces of writing, artistic works, and so on. International regimeArticle 2 of the Berne Convention for the Protection of Literary and Artistic Works describes the ‘creators doctrine’, which states:
Furthermore, the work must be an intellectual creation and fixed in material form.
ANGELS Aerospace is an enterprise which analyses remote sensing data. It wants to know whether databases can be under copyright.
ANGELS Aerospace will have to ensure that it meets these requirements and use a creative system. Note: the European Union has introduced copyright protection for unoriginal databases (which do not fulfil the creativity requirement) but it is the only jurisdiction to do so. Australia is a member of the World Intellectual Property Organisation (WIPO), which administers the Berne Convention, and therefore its domestic regime is consistent with the Convention. Australian copyright law can be found in the Copyright Act 1968 (AUS). In Australia, copyright generally lasts for the life of the creator plus 70 years. If there is a dispute about who created something protected by copyright, it may need to be resolved by a court. Note that the duration of copyright varies from country to country. Where, for example, material is to be reproduced or sold overseas, advice may be needed to determine whether relevant copyright material is still protected in that country, and therefore whether any permissions may be needed in relation to the use of the material in that country. TrademarksDefinition: a recognisable sign, design, or expression which identifies products or services of a particular source from those of others.The laws regarding trademarks will be relevant only if a space entrepreneur wishes to trademark its logo, a particular phrase or image, etc. International regimeAustralia is a signatory to the Singapore Treaty on the Law of Trademarks, which simplifies the process of obtaining rights internationally, setting limits on administrative requirements. Australian regimeThe main source of authority regarding trademarks in Australian law is the Trade Marks Act 1995 (AUS). Applications for a trademark are made to IP Australia, and must provide a description of the goods or services you intend to use the trademark on. There are 45 classes of goods and services. Before applying for a trademark you should ascertain whether you are trying to register a common or prohibited sign, word, or phrase. You should also search the relevant databases to ensure that you are not trying to trademark someone else’s trademark.
Internationally, licensing conditions vary across jurisdictions so regulation is left to individual States, although there should be some level of consistency. For a space entrepreneur, any copyrighted material or patented invention may be licenced to a third party in a number of ways. In Australia, there are three types of licences:
The owner of the work has complete discretion to grant or refuse a licence.
If you expect to get something in return for the rights you are granting (e.g. payment) you will generally be entering into a contract, which must be in writing and signed by the owner before it is legally effective. You should always obtain legal advice before finalising any agreement or signing any document.
Visit the Department of Foreign Affairs and Trade website for more information Australia’s international responsibilities regarding IP: https://dfat.gov.au/trade/organisations/wto/intellectual-property/Pages/intellectual-property.aspx Visit the IP Australia website for more information Australia’s patent and trademark application process, as well as more general information about intellectual property in Australia: https://www.ipaustralia.gov.au/
They can be manufacturing or industrial secrets and commercial secrets. For example, trade secrets have been used by Coco-Cola for decades to ensure that its formula remains secret. The most common type of knowledge protected by trade secrets is ‘know-how’ (any unique knowledge and/or skills regarding manufacture, products, services, and so on).
An invention must be a new and novel, process, machine, manufacture or composition of matter, which is non-obvious and industrially applicable.
Licensing in this sense means a person granting to someone else a limited right to do something. For a space entrepreneur, any copyrighted material or patented invention may be licensed to a third party in a number of ways.
Assess whether it would be most appropriate for the work or creation to be a trade secret, patented, protected under copyright, or trademarked. 2. Obtain legal advice if necessaryNote that a patent can only be filed by a patent attorney, while trade secrets and copyright go into effect automatically. See ‘Getting Legal Advice’. 3. If you are interested in obtaining a licence, ensure you understand the different types and their obligationsExclusive, non-exclusive, and implied licences carry different obligations on the original owner of the work and the owner of the licence.
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