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The Sky’s the Limit – or Is It?

More than fifty years since we set foot on the Moon, space exploration has recently stepped up a gear. NASA’s latest space mission, Artemis, aims to establish a sustainable human presence on the Moon by 2030, with the ultimate goal of sending humans to Mars. In my previous Insight article, I looked at how space exploration can drive innovation back on Earth. Here, we go on a fly-by of some of the scientific opportunities made possible by research actually performed in space, and the impact this has on the earthly world of IP.

Science in space

Conducting experiments in space is not a new concept. The International Space Station (ISS) has been inhabited by astronauts for the last twenty years and offers a unique environment to perform long-duration experiments in microgravity, the results of which can be applied to medical treatments, consumer products, and much more.

One experiment run by the Japan Aerospace Exploration Agency is targeted at growing extremely high quality protein crystals. Protein crystallography is vital for understanding the structure of proteins and is used by drug developers to create drugs with improved protein interactions and thus greater efficacy. The higher the quality of the crystal, the better the image.

Protein crystals grown in microgravity are generally better-ordered than those grown on Earth. Removing gravity eliminates the convection currents generated during crystal growth, which can affect the structure and introduce impurities. The unique environment afforded by space can therefore be used to inform advances in drug development and design.

Microgravity can also be used to study aging here on Earth - in particular, it is known that spending significant time in microgravity causes health issues resembling the natural processes of aging, such as muscle deterioration and osteoporosis. Unusually, in astronauts these physical changes are reversed when they return from space. Understanding and replicating this reversal clearly has huge potential in an aging population.

In order to study this on a cellular-level, tissue chips containing human cells in controlled, artificially engineered environments designed to recreate tissue and organ function are being stored and analysed on the ISS. The cellular changes of organs in microgravity are then being assessed, with the aim of creating treatments that might be able to slow down some of the effects of aging here on Earth.

On the consumer products side, a popular field of research concerns colloids. Colloids consist of small particles dispersed in a fluid - perhaps the most well-known example is milk, which contains small fat globules dispersed in a water-based fluid. The interactions between colloidal particles and the fluid in which they are dispersed affect the stability of the colloid, but on Earth gravity also causes colloidal particles to either sink or float within the fluid, depending on the relative densities of the components.

As in the case of convection discussed above, experiments in microgravity remove this factor, providing inimitable insights into the behaviour of colloids. For example, Procter & Gamble have utilised this research to improve the properties of their colloidal-based products, such as fabric softener, to reduce clumping and settling of the particles whilst maintaining good flowability.

Space for patents in space?

There is no doubt that leveraging our ability to carry out science in space offers unique opportunities for technological advancement. Future experiments on the Moon and, one day, even Mars will only exacerbate this. However, what about IP - is there any space for patents in space?

One of the key issues to consider is infringement. Here on Earth, infringement is controlled by jurisdiction. Most countries have infringement provisions that apply when patented products are used, sold or imported into the country. Many countries also provide certain exemptions to infringement - for example, in the UK, these include exemptions for experimental use, and use on ships and aircraft visiting the United Kingdom’s territorial waters or airspace. There are clearly some parallels that could be drawn between use in space and use on a plane that transiently crosses certain airspace.

However, perhaps there is no need for provisions to cover infringement in space. Over one hundred countries, including China, the UK and the US are party to the 1967 Outer Space Treaty, which sets out the principle that space should be considered as belonging to all mankind and prohibits any state from claiming celestial bodies as their own. This suggests that no country which is a signatory to the Treaty could enforce its infringement provisions in space after all - the Treaty essentially provides a universal exemption for space. While this may sound like good news, will investment into developing inventions specifically for use in space be muted, because it will be more difficult to recoup? In the future, we might find that an ability to enforce IP in space is a useful tool in encouraging investment into space-based research.

It is difficult to say how well this Treaty will withstand the rapid growth in space exploration that is to come. Although there were lofty ambitions for space and interplanetary expansion back in 1967, these remained largely theoretical until recently. Indeed, only now do the goals that NASA and others had in mind seem to be on the horizon. Now is as good a time as ever to consider whether space offers not only a unique physical environment for research but also a unique legal environment for intellectual property: perhaps the sky is not the limit, after all.


Image: A view of NASA astronaut Jessica Meir configuring the Light Microscopy Module (LMM) for the Advanced Colloids Experiment-Temperature-4 (ACE-T-4) science run in the Destiny module aboard the International Space Station (ISS). Introducing disorder to a crystalline system in a controlled way can form glass. Advanced Colloids Experiment-Temperature-4 (ACE-T-4) examines the transition of an ordered crystal to a disordered glass to determine how increasing disorder affects structural and dynamic properties. © NASA

Article by: Jenny Soderman | 14 July 2021

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