The issue for the European Partner
The issue for Europe is that ESA represents the European governments of the ESA Member States that participate in the ISS. ESA is considered as the European partner and can also act as the state of registry. Given that the partners have decided to apply the laws of the state of registry to ISS activities, an activity occurring in or on an ESA element is deemed to have taken place in all the European partner states at the same time. Therefore, it is feasible that the different laws of a number of countries could be applied to activities occurring in or on the European modules.
ISS Intergovernmental Agreement (ISS IGA) paragraphs 4 and 5 of Article 21 have been designed to reduce the effects of multiple jurisdictions on an ESA-registered element. Paragraph 4 addresses the concern that a user of an ESA-registered element could infringe patents for the same invention granted by several European partners. According to Article 21.4 of the IGA, if an act of infringement of an IPR protected in several ESA Member States occurs in or on an ESA-registered element the owner cannot recover in more than one state for the same act of infringement.
However, the owner of the IPR can choose the state whose intellectual property law offers the most advantages. This can lead to legal uncertainty, especially as only Germany has patent law which is specifically applicable to inventions realised or used in outer space.
Paragraph 5 limits the adverse effects on licensees of potential applicability of multiple jurisdictions. All European partners are obliged to recognise an IP licence for activities occurring on an ESA-registered element if that licence would be enforceable under the laws of any European partner state. Without such a provision, a licence arrangement for an ESA element would potentially have to comply with all the legal requirements of all the European partner states.
