Brian Smallshaw
93 Geo. Wash. L. Rev. 910
Amid a developing space technology industry, Congress passed 35 U.S.C. § 105 in 1990 to protect inventions in outer space from patent infringement. The Act clarified when an object in space should be considered made, used, or sold within the United States, but provided an exception for when another country registers the object under the Convention on Registration of Objects Launched into Outer Space. Traditionally, this exception has been read to create a flags-of-convenience loophole. A potential infringer could register their space object in another country and benefit from the U.S. market without fear of infringement liability under U.S. case law addressing extraterritorial infringement. As the space technology industry continues to grow rapidly each year, protecting patent rights for inventors is a necessary step to ensure the United States does not fall behind competing countries technologically or economically. This Note explores why the traditional interpretation of 35 U.S.C. § 105 is not in agreement with the goals of the patent system or the intention of Congress and offers a novel interpretation that avoids the loophole and brings the statute in line with patent policy and Congress’s intent. Further, this Note discusses why interpreting the exception as a limitation on the scope of the statute is a particularly effective solution to eliminate the loophole and addresses two possible counterarguments against the solution.
