Is the new toilet on the International Space Station patentable?

21 October 2020

The long-awaited big news has finally arrived: a new toilet will soon be deployed on the International Space Station (ISS)! Formally called the Universal Waste Management System (UWMS), the new space toilet is nearly 65 per cent smaller than the one currently on the ISS. It is also 40 per cent lighter.

In this article, we look at the patentability of the new space toilet system. Obviously, for a technology to be patentable in Canada, it must be new, inventive and useful. There is no doubt that the new system will be particularly useful to the ISS!

As we often like to point out, a patent is a business tool and it is through this lens that we will discuss it. Patent protection is subject to the territorial legal framework in which the patent was obtained. These laws provide remedies to the patent holder in case of infringement of its patent within that territory. Because space is fundamentally extraterritorial to all territorial legal frameworks in international law, determining the scope of patent protection may be more complex than expected.

Let's look at the case where a competitor holds one or more patents on the technology behind the space toilet in a certain country or territory. Will their patent be applicable once the technology is deployed in the ISS? Will their patent be applicable if the space toilet enters or transits through the country or territory where the patent was filed? The answer is not so obvious.

Under international space law, the state in which the space object is registered retains jurisdiction and control over it. Thus, and under various international agreements, registered space objects are treated as quasi-territorial for intellectual property purposes[1]. If technology similar to that used in the space toilet is already protected by a United States patent, then the toilet may be found to infringe the patent in question – assuming the toilet is housed in a U.S.-owned module

The question then becomes whether infringement can be avoided by simply moving the space toilet to a module where the underlying technology is not protected from an IP point of view. Now suppose that during such a move, the space toilet passes through the U.S. module – would an applicable U.S. patent be infringed? Again, the answer is not obvious.

One avenue for reflection would be the doctrine of "temporary presence" established in article 5ter of the Paris Convention for the Protection of Intellectual Property[2]. This doctrine provides – in the public interest – for certain limitations to the exclusive rights conferred by a patent in order to guarantee freedom of transport. To avoid liability under this doctrine, the conveyance must meet certain conditions. First, the conveyance must be a vessel, ship, aircraft or land vehicle. Second, it must enter another Paris Convention country on a temporary or accidental basis. Finally, the patented device must be used exclusively for means of transport (one might wonder what it would take for the space toilet to be considered a means of transportation – we'll leave you to speculate).

On a more serious note, the applicability of the doctrine of temporary presence to space objects remains theoretical for the time being, since no decision has yet been taken on this subject[3][4].

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