1. Introduction

At the beginning of Space Age, space activities were predominantly public activities or governmental space programs mainly devoted to exploratory and experimental as well as military space operations, but they were not commercial. However, in the last decade until now, the character of space activities have fundamentally changed from public purposes to world commercial ones. The global policy for the free goods and service trade as well as fair competition have expanded and thus, create new patterns of relative investment (especially) in space activities. They range from government-government, government-private sector, to business enterprises themselves. This lies in the areas of exploration, usage and commercial exploitation of outer space.

Space activities are, like all human beings' activities, subject to international and national laws and regulations. The space activities for profitable commercial ventures bring about the motives for international cooperation and competition which create new legal problems, emerging from other activities e.g. space communications, space industries, and launching of the services, etc. Nevertheless, for space activities themselves, a number of regulations can be mentioned which are applicable to space activities but depending on the nature of such activity. For instance, satellite telecommunications activities are subject to public international law, international space law, international telecommunications law , as well as their own national law.

Intellectual property rights (IPRs) currently raise a number of impotent/ important? legal questions in regards to space activities e.g. ownership of intellectual property and infringement of IPRs, etc. Since private enterprise has become a recognized factor in further space development, and space applications are becoming more and more integrated in everyday life on earth, intellectual property rights (especially industrial property) relating to space activities are gaining substantial importance. Industrial property (patent system) plays an essential role for the grant of a patent, generally to encourage the inventive activities for the benefit of the general public. Since patent systems have been developed as a balance between the interests of an inventor and those of the general public.

This research, aiming at demonstrating the applicable legal regime for intellectual property rights in outer space, will concentrate on the patent law system of the EU and Thailand. When plans have especially been made to the international space station, discussions on patents and activities in outer space are changed from theoretical aspect to practical use. It is assumed that patent-related issues would arise only in regards to the creation of an invention. This is specially so after permanent laboratories in earth orbit and/or in the base station on the Moon or on the Mars are established. Due to the fact that special space environment is expected to generate new material and technologies. Moreover, new technologies need to be developed in order to carry out activities in this very harsh environment (eg. difference in temperatures etc.).

2. Legal Regulations of Activities in an Outer Space

On 4 October 1957, the Space Age actually began when the world's first artificial satellite, SPUTNIK-1 (`travelling companion') was launched by the Union of Soviet Socialist Republics (USSR). Subsequently, other suggestions have also been made in relevance to the matter, which, if not juridical, undoubtedly possess the merits of expediency (what does this mean?)

1) quite a number of interests of the States in an exploration and use of outer space, for instance, considerations on policy and strategy in regards to science and economics. This is so in order to avoid confusion and conflicts as well as to enable some orderly procedures on special required rules;
2) space law in consistence with an ongoing revolution in space technology, forming a logical sequel (what does this mean?) to it;

3) outlining the basic principles for further evolution in law with a tendency to allow the situation to get out of hand and then crystallize in various shape and forms, thus a detriment to a cohesion and an uniformity.

While the pros and cons surrounding the proper place for space law within the context of international law have been in a debate, a prompt search for analogies and models will be in the older structures within that sphere.1

Definition of an Outer Space

No formally accepted legal definition or delimitation of outer space exists at this moment. However, it is clear from the above mentioned that any definition should contain a reference to the role being played by the density of the atmosphere. A convenient/suitable/proper definition could therefore be as follows:

An outer space is all the space surrounding the Earth . It is where objects can move without artificial propulsion systems, according to the laws of celestial mechanics. It exists without being prevented from doing so by frictional resistance of the Earth's atmosphere. It extends from an altitude above the Earth of approximately 100 ? 10 km. upwards.

In an outer space , as defined above, satellites, both natural and artificial, can move around the Earth without any active propulsion system. It is certain that when the orbital trajectory reaches altitudes close to 100 km, the braking force will still be strong enough to bring down the trajectory to under 100 km. This will be so in a prompt manner, since the frictional resistance decreases gradually with increasing altitude. Even at some 1000 km, this friction is still present, albeit very weakly. It will also take an object at this altitude for at least some 1,000 years to descend down to the Earth's surface.2

Legal Status of an Outer Space

At the beginning of Space Age in 1957, discussions began in the State community, within the UN, precisely on the legal status of this new issue. Several legal concepts of traditional public international law could be applied to a newly 'discovered' area. At final, the approach, which was chosen by the State community, was quite different from but comparable with the regime established for the high sea, where no State sovereignty is accepted. An outer Space was declared as a res communis which is not subject to the sovereignty of any State, and where States are bound to refrain themselves from any acts that can adversely affect the use of an outer space by the other states.3

Space Law Conventions

The well known international space law consists of the five space treaties concluded in the framework of the United Nations (UN):

- Treaty on principles governing the activities of States in the Exploration and Use of an Outer Space, including the Moon and other Celestial Bodies of 27 January 1967 (Outer Space Treaty);

- Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into an Outer Space of 22 April 1968 (Rescue Agreement);

- Convention on International Liability for Damage Caused by Space Objects of 29 March 1972 (Liability Convention);

- Convention on Registration of Objects Launched into Outer Space of 14 January 1975 (Registration Convention);

- Agreement Governing the Activities of States on the Moon and Other Celestial Bodies of 18 December 1979 (Moon Treaty).

All of these stem from the fact that research and development, as well as the launching of space objects and their operational cost, require resources on such a scale that the task could only be undertaken by states or government-supported organizations. This can well explain the emergence of legal norms agreed upon and sanctioned on an international level. The first tangible result of COPUOS involvement was that a fundamental agreement on an outer space was ready for signature in 1967 : it was the Outer Space Treaty and was based on UN Resolution No. 1348 of 13 December 1958, No. 1472 of 12 December 1959, No. 1721 of 20 December 1961, and the Test Ban Treaty of 1963. The Outer Space Treaty provides the basic principles for the exploration and use of an outer space. Consequently, it serves as a "Magna Charta" or "Constitution" for all activities in an outer space. A number of its principles were elaborated in more specific provisions of four other space treaties mentioned above.

Principles of International Space Law

The Outer Space Treaty was a landmark in an establishment and a progressive development on the rules of international space law. The principles of international space law constitute the most general rules of behavior for states in their space activities. This treaty has established the following principles of international space law:

- Right to use an outer space but not to appropriate it

In the Outer Space Treaty, we can find this principle. In Article I, it has been stated that "Outer Space ...shall be free for use and exploration by all states". In Article II, "Outer Space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means". Since the freedom to explore and use an outer space is considered as a res communis. It rests on the assumption that all states must not place any obstacles or impediments upon the conduct of one's activities . In other words, every state must pay a respect to the rights and the interests of other states in an outer space.4

- Application of International Law

In the Outer Space Treaty, Article III provides that activities of all states parties in an outer space shall be carried out in accordance with international law, including the Charter of United Nations since Space Law is considered a lex specialis or a branch of international law.

- Obligation to use an outer space for a peaceful purpose

The principle to use an outer space for a peaceful purpose is contained in Article IV of the Outer Space Treaty. This article discusses:

1) the prohibition of nuclear and/or other weapons of mass destruction in orbit around the Earth;

2) the limitation and/or obligation to use the Moon and other celestial bodies for exclusively peaceful purposes.

From the viewpoint of the principle to use an outer space for 'peaceful purposes', the emphasis of this treaty aims at e.g. according to the Preamble to the Treaty (the common interest of all mankind in the progress of an exploration and a use of an outer space for peaceful purposes), article IV clearly deviates from those purposes. Because the Moon and other celestial bodies are used for exclusively peaceful purposes as something non-militarized, the rest of an outer space will only prohibit the weapons of mass destruction and those nuclear weapons. When we combine Article III and Article IV with the preamble of the Outer Space Treaty, we will gain a doctrine which emerges that though an outer space can be used for military purposes, it will, however, be used in a non-aggressive way.

- State's responsibility for and supervision of private activities

The State is responsible for the activities of its private sector entities in an outer space congruent with Article VI of Outer Space Treaty. In order to assure compliance with the Treaty, the State must authorize and continuingly supervise non-governmental activities in an outer space use.

- Liability for Damage

Both Article VII of the Outer Space Treaty and the Liability Convention provide State liability for damages to a third party. The `launching state' is absolutely liable for damage occurring to the surface of the Earth or aircraft in flight. In regards to other objects in an outer space, the launching state is liable when it is at fault. No description of `fault' is given by the Outer Space Treaty. A fault normally'refers to a negligence or a culpa. However, the degree of such negligence or culpa for the attachment of liability is unclear. The `launching state' is defined as the state that launches, procures a launch or from whose territory or facility the space object in question is launched.

- Registration of space objects

In Article VIII of the Outer Space Treaty and the Registration Convention, one will find an obligation of a state to exert jurisdiction and control over an object launched into an outer space if that object is registered in that State's register. Registration is carried out in national registers and an intemational register will be kept by the Secretary General of the UN.

- Retention of Jurisdiction and Control

While an object is in an outer space, Article VIII of the Outer SpaceTreaty provides that State of registry retains
the jurisdiction and control of an object launched into an outer space.

3. General Principles applicable to Patents

As an overview, there are many principles applicable to the patents;

1) The patentability of an invention:

Once something has fulfilled the criteria of an invention, it must then be shown to be patentable prior to being capable of attracting an exclusive monopoly in its exploitation. For an invention to be patentable,

a) it must be new;

b) it must involve an 'inventive step'; and

c) it must be industrially applicable5

a) An invention must be new:

The novelty requirement seems to be the most important in relation to outer space activities. Novelty is determined in reference to existing knowledge at the invention's 'prior data', which usually is the date on which an application is first made for a patent. One looks back at 'the state of the art', meaning, the sum and the total of human knowledge, which has, at any time, been made available to the public, and has, been so regardless of where in the world and in which way. In case the invention does not appear to already be a part of the state of the art, or, in case it is not possible to infer as being an implicit part of the state of the art, that invention is considered new.6 Though the determination of knowledge differs in various national systems, patent legislation in all European countries and Thailand7, which is examined by this research paper, is of the same patentable requirements because they require such absolute novelty.

b) The invention must involve an 'inventive step'.