Intellectual property rights in outer space: How can pharmaceutical companies protect COVID-19 vaccine and immunotherapy developments aboard the ISS US national laboratory?

Abstract

Believing that space pharmaceuticals might be the key to winning the battle against COVID-19, global pharmaceutical companies such as AstraZeneca and Sanofi Pasteur are currently collaborating with the International Space Station National Laboratory (ISS-NL) on research projects aiming to develop vaccine-and-immunotherapy products. The present legal regime for outer space, however, does not provide clear guidelines on safeguarding intellectual property rights (IPRs), due to the difficulties of reconciling the territorial nature of patent law and the nonterritorial nature of space law. Responding to such a legal gap, this research paper argues how pharmaceutical companies can protect such medical innovations by taking into consideration the international principles of space law addressing IPRs and extraterrestrial jurisdiction, as well as the legal regime of the ISS-NL. With the exception of the possibility of the barriers between the two areas of law not being insurmountable, the proposed COVID-19 TRIPS Waiver furthermore impacts space pharmaceuticals' IPRs and commercialization, which leads to the identification of some advantageous forms of agreements, including the Joint Endeavor Agreement, the Space Act Agreement, as well as the Cooperative Research and Development Agreement, for pharmaceutical companies defined as agreement partners with the National Aeronautics and Space Administration.