Territory Without Territory: Filling India’s Legal Vacuum in Outer Space Innovations

Introduction : In April 2023, the Indian Space Policy allowed private companies to use the country’s launch vehicles, satellites and rockets, ending ISRO’s monopoly. This landmark policy indicates a shift from operational missions to advanced research and commercialisation. Within the next two years, the ISRO’s commercial arm, New Space India Limited, has registered over 70 technology transfer agreements with private entities. While this framework was meant to provide a commercial backbone, the Space Activities Bill, which has been in draft for nearly a decade, raises concerns regarding ownership of intellectual property created during space activities.

This article examines this jurisdictional conflict through both international and Indian legal frameworks. It first analyses how international space law has attempted to reconcile territorial patent rights with a non-territorial domain through the doctrine of quasi-territorial jurisdiction and selected treaty mechanisms. It then evaluates India's existing legal framework, highlighting the regulatory gap between the commercial objectives of the Indian Space Policy, 2023 and the absence of statutory protection for intellectual property created in space. Finally, the article argues that India should adopt a statutory framework recognising quasi-territorial patent jurisdiction over Indian-registered space objects, thereby providing legal certainty for innovators while remaining consistent with its international obligations.

The Conceptual Problem: Territoriality Against a Borderless Domain

The Intellectual Property laws are generally territorial in nature. A patent registered by the Indian Patent Office confers the rights of the patent granted to be enforceable within the territory of the Indian Regime. This structure states that every act of invention, infringement, or use happens to be identifiable within the territory where it has been registered, not outside the territory of the sovereign where it has been registered.

Article VIII of the Outer Space Treaty provides the legal foundation for resolving this jurisdictional dilemma, which directs that the country that has launched the space object will retain its territorial jurisdiction and exclusive control over their ownership, regardless of where it is in space. The Registration Convention 1976 provides legal backing to Article VIII by mandating the launching states to maintain national registers and furnish the particulars regarding the space objects to the United Nations. Therefore, it identifies the “State of Registry” for Article VIII.

In response to this single provision, scholars and international jurists created a legal fiction by the name of the “Quasi-Territorial” Jurisdiction. Under this fiction, a state retains authority, jurisdiction and power over the artificial satellite and its occupants regardless of its physical location in the cosmos. So, this legal fiction is not a treaty in itself, but rather an inference, which is applied by the states when they have to legislate on it. It is the conceptual hinge on which the entire international IP-in-space framework turns, and its narrowness is precisely why so much of the field remains unsettled.

The International Legal Architecture

Unfortunately, neither of the prominent multilateral treaties, including the Paris Convention, the Berne Convention, nor the TRIPS Agreement, has mentioned outer space. Only WIPO’s dedicated study for the OECD workshop 2004 mentioned that no international law, treaty, or convention can address the protection of trademarks, copyright, and patents in the cosmos.

A general exception to this is Article 21 of the 1998 Intergovernmental Agreement on the International Space Station, negotiated by the members of the United States, Russia, Japan, Canada and European Agency Members. Article 21(2) provides that the activities occurring in the partner state are presumed to have transpired in that partner state’s territory for intellectual property purposes.

This provision ensured that the inventor received protection under the national patent laws of the parent state. Article 21(3) establishes that an IGA partner nation cannot stop a national from another partner state from filing a patent. Member states can invoke the “Secrecy of Invention” laws to prevent a patent from being filed only if the invention directly concerns their national security interests. Article 21(4) directs that an IP owner cannot claim damages for the same infringement from more than one member state, even if the IP right is protected in different member states. The ISS agreement demonstrated that through legal fiction, territorial patent protection can be adapted without violating the core tenets of the Outer Space Treaty.

However, this agreement has a very limited scope as it is only applicable to the International Space Station and its partner states. The activities like missions on the moon, the interplanetary Mars mission, and asteroid mining operations are out of its scope. Moreover, this agreement doesn’t bind the non-participating states, including India and China, which are showing rapid growth in space activities. Therefore, it cannot be recognised as a universal framework for future space governance. 

The United States Model

Only one state that adhered to the tenets of the Outer Space Treaty 1967 and has converted the concept of quasi-territoriality into reality is the United States.  Section 105 of the United States Patent Act would treat any US- registered space object as compliant with the US patent laws and under the territory of the US for infringement protection. This provision aims to provide a domestic legal home to a US-based invention conceived abroad in outer space by recognising the activities done on the registered spacecraft to have occurred within the borders of the United States.

The scope of Section 105 is narrower than it appears; it excludes space objects on a foreign registry, even if a US company operates and builds them, which creates a cross-border escape mechanism from the liabilities of infringement under the US patent law. Also, the provision is not retroactive as it does not apply to the inventions that were launched in outer space before the enactment of the law in 1990. Despite these limitations, Section 105 remains the only enacted general statute that provides the country’s space-sector innovations a domestic legal home, the legal backing that many countries fail to provide to their space-sector inventors.

The Indian Position: A Regulatory Gap Amid a Commercial Boom

The Patents Act, 1970, is a completely territorial-based concept, granting no protection or a legal domestic home to the outer space inventions. It has been silent on the point that the Indian- registered space object or invention has any territorial connection to the Indian patent system. The introduction of private entities in the Indian space sector makes this silence far less tolerable now, as they invest a substantial amount of resources into the technology, requiring certainty regarding the ownership, licensing and enforcement of intellectual property they generate. 

The Indian Space Policy ended ISRO’s monopoly with the creation of the Indian National Space Promotion and Authorisation Centre, IN-SPACe, which authorised private launches and satellites, and positioned NewSpace India Limited as the commercial arm. Roughly seventy technology transfer agreements have followed after that. But none of this expansion encouraged the Indian government to implement a statutory provision that would be clear about the inventorship and ownership of intellectual property for outer space operations.

The 2017 draft on space activities was intended to clarify this aspect, but it included a clause that would transfer all IP rights to the central government of India. This decision received heavy criticism as it would harm the foreign investments, which were pivotal for the commercial development of the Indian aerospace industry. The Indian Space Policy 2023 also didn’t address intellectual property protection for space inventions.

Recommendations: The Way Forward for the Indian IP Regime

The comparative analysis reveals a pattern, while the ISS Agreement demonstrates a workable contractual model, and the United States offered a domestic legislative reform. India lacks a comprehensive statutory framework that incorporates these elements into its intellectual property regime.

A first legislative reform should be an amendment to the Indian Patents Act, 1970, which is largely territoriality-centric. Under this act, the patent protection is confined to the inventions made within the borders of India, creating a sharp legal vacuum for the inventions made in the Indian-registered spacecraft or orbital payload. To bridge this gap, the act must accept the “quasi-territoriality” model, which extends the patent rights to the India-registered spacecraft, treating them under the Indian jurisdiction for patent protection. India can also draw inspiration from Section 105 of the US Patent Act, which treats inventions made on its spacecraft as if it is made within the country’s borders and hence protects them from infringement by the use of domestic laws. Adopting these mechanisms would provide legal certainty to the Indian space inventions, strengthen private research and development and would certainly encourage the Indian space inventors to make more inventions.

A balanced legislative reform is required that would provide IP rights to private inventors, recognising their inventions by providing legal backing. This will encourage the inventors and is likely to bring more foreign investment into the expanding space domain. The law may also provide for a joint ownership model in cases involving national security interests. Such a model would grant the private inventor the primary ownership and commercial rights, while reserving a right for the state in matters of national security, thereby preserving the inventor’s confidence without compromising the national interest.

Conclusion

The commercialisation of interstellar space has made the traditional territorial foundations of intellectual property law increasingly obsolete. Though international space law prohibits territorial sovereignty over outer space, it does not preclude the need for legal certainty regarding inventions created away from Earth. Article VIII of the Outer Space Treaty, for example, provides for the doctrine of ‘quasi-territorial' jurisdiction, which, as applied in the instruments that have emerged, such as the International Space Station IGA or the US Patent Act, demonstrates that territorial patent protection is compatible with the special nature of outer space law without challenging international law.

However, the Indian country has been slow to apply this principle at home. Though the Indian Space Policy (ISP) has successfully invited the private sector into the space industry, there is a lack of legislation to ensure that IP produced in space remains under the innovators' control and protected. Such regulatory uncertainty could jeopardise investments, technological progress, and India's international competitiveness as the private space sector moves on to increasingly advanced research and commercial spaceflight operations.

This gap can be filled by an amendment to the Patents Act 1970 that recognises the quasi-territorial nature of patents over ‘space objects' registered in India, while not violating international law. Such a regime would be a clear sign that India's legal order is prepared to govern innovation wherever Indian enterprises go to, much more significant than protecting inventions in space. The legal aspect, like technical capability, will be as important in this race to the future in the space economy as it will be in the space race India is aiming for.

Author: Tushar Soni, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

1. Indian Space Policy 2023, Ministry of Science and Technology, Department of Space, Government of India (Apr. 2023) (ending ISRO's monopoly by permitting private companies to use national launch vehicles, satellites, and rockets)

2. Indian Space Policy Review: Entrepreneurship and Innovation Ecosystem, Carnegie Endowment for International Peace (May 2026) (discussing the policy's shift from operational missions toward advanced research and commercialisation).

3. NSIL Annual Report 2024–25, New Space India Limited (2025) (India) (recording that ISRO's commercial arm registered over seventy technology transfer agreements with private entities).

4. Draft Space Activities Bill, 2017, PRS Legislative Research (India) (raising concerns over ownership of intellectual property created during space activities and proposing to vest all such IP rights in the central government).

5. The Patents Act, 1970, No. 39 of 1970 (India) (establishing a territorial patent regime under which rights granted by the Indian Patent Office are enforceable only within Indian territory).

6. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. VIII, Jan. 27, 1967, 18 U.S.T. 2410 (assigning the launching state territorial jurisdiction and control over its space objects and personnel, regardless of location).

7. Convention on Registration of Objects Launched into Outer Space, 1976, UNOOSA (mandating launching states to maintain national registries and furnish particulars of space objects to the United Nations, thereby identifying the “State of Registry” for purposes of Article VIII).

8. Quasi-Territorial Jurisdiction, EU Open Science Journal (2004) (describing the scholarly legal fiction under which a state retains authority over its space objects and their occupants irrespective of location in the cosmos).

9. Intellectual Property and Space Activities, World Intellectual Property Organization, contribution to the OECD Workshop on Space (2004) (concluding that no international treaty or convention addresses the protection of trademarks, copyright, or patents in outer space).

10. Agreement Among the Government of the United States of America, Governments of Member States of the European Space Agency, the Government of Japan, the Government of Canada, and the Government of the Russian Federation Concerning Cooperation on the Civil International Space Station, art. 21, Jan. 29, 1998 (establishing the legal framework governing intellectual property created aboard the International Space Station among its partner states).

11. Civil International Space Station Intergovernmental Agreement, art. 21(2), Jan. 29, 1998 (providing that activities occurring in a partner state's registered element are presumed to have occurred within that partner state's territory for intellectual property purposes).

12. Civil International Space Station Intergovernmental Agreement, art. 21(3), Jan. 29, 1998 (providing that a partner state may not prevent a national of another partner state from filing a patent, save where the invention implicates national security under “secrecy of invention” laws).

13. Civil International Space Station Intergovernmental Agreement, art. 21(4), Jan. 29, 1998 (barring an intellectual property owner from claiming damages for the same infringement from more than one partner state).

14. Limited Scope of the ISS Intergovernmental Agreement for Intellectual Property Governance, International Journal of Legal Science and Innovation (noting that the ISS IGA binds only its partner states and does not extend to lunar missions, Mars missions, asteroid mining, or non-participating states such as India and China).

15. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 U.N.T.S. 205, UNOOSA (prohibiting national appropriation of outer space while leaving intellectual property protection to be inferred through quasi-territorial jurisdiction).

16. 35 U.S.C. § 105 (2018) (deeming any invention made, used, or sold aboard a US-registered space object to have occurred within the territory of the United States for patent purposes).

17. From Earth to Outer Space: The Limits of the U.S. Patent Law, Rutgers Institute of Information Policy & Law (Feb. 20, 2018) (explaining that Section 105 excludes foreign-registered space objects from its protection and does not apply retroactively to inventions launched before 1990).

18. Patents and Space-Related Inventions, European Space Agency (confirming that Section 105 of the US Patent Act is not retroactive and does not cover inventions launched into space before the statute's 1990 enactment).

19. The Patents Act, 1970, No. 39 of 1970 (India) (containing no provision recognising any territorial connection between an Indian-registered space object or invention and the Indian patent system).

20. Indian Space Policy 2023, Ministry of Science and Technology, Department of Space, Government of India (Apr. 2023) (creating the Indian National Space Promotion and Authorisation Centre (IN-SPACe) to authorise private launches and satellites, and positioning New Space India Limited as the sector's commercial arm).

21. NSIL Annual Report 2024–25, New Space India Limited (2025) (India) (recording roughly seventy technology transfer agreements concluded following the 2023 policy reforms).

22. Draft Space Activities Bill, 2017, PRS Legislative Research (India) (proposing a clause transferring all space-related intellectual property rights to the central government, a provision criticised for its potential to deter foreign investment).

23. Indian Space Policy 2023, Indian National Space Promotion and Authorisation Centre (India) (confirming that the 2023 policy did not separately address intellectual property protection for space-related inventions).