Benefits of NASA Space Directive on Mars could be Limited by Uncertain Software, Biotech Patentability

By Steve Brachmann
January 1, 2018

The belief in manifest destiny, despite having a somewhat checkered legacy, is a principle which had been indelibly etched into the American psyche back in the 19th century. The somewhat vague notion that it was the destiny of the United States and its citizens to march westward towards the Pacific Ocean, populating the landscape along the way, may not have been a popular idea among all Americans (Abraham Lincoln was one opponent of the idea) but it’s tough to deny its effects on the United States of today.

Much more recently, President Donald Trump signed a new space policy directive for human expansion across the solar system, a directive which hearkens at least slightly back to Horace Greeley’s “Go West, young man.” Increased human expansion in space will produce innovations that can improve human life on Earth to the benefit of U.S. consumers, provided our nation’s struggling IP regime can be righted for the proper commercialization of such inventions.

President Trump’s new space policy directive was announced by NASA on December 11th, a little more than two months after Vice President Mike Pence chaired a National Space Council meeting where calls for renewed U.S. leadership in space set the stage for Trump’s new directive. White House Space Policy Directive 1 (SDP-1) set a new far-reaching exploration milestone for NASA to lead an innovative and sustainable exploration program working with both commercial and international partners “to enable human expansion across the solar system and to bring back to Earth new knowledge and opportunities.” This new exploration program is to begin with missions in low-Earth orbit leading to manned missions to the Moon for long-term exploration and utilization, winding eventually towards manned missions to Mars. “This time, we will not only plant our flag and leave our footprints — we will establish a foundation for an eventual mission to Mars, and perhaps someday, to many worlds beyond,” Trump is quoted as saying at the signing of SPD-1.

The White House’s focus on a mission to Mars is not new with the Trump Administration and actually furthers executive branch policies pursued during the administration of former President Barack Obama. In 2015, NASA released a three-part plan involving missions in cislunar space on and around the Moon and leading towards eventual manned missions to Mars as early as the 2030s. In late October of 2015, then-NASA Administrator Charles Bolden discussed the need to develop partnerships with commercial entities to achieve space exploration goals at an event hosted by the Center for American Progress. The Trump Administration’s recent space directive may place a greater onus on American leadership, which isn’t surprising given the timbre of Trump’s political rhetoric, but recent years have seen the first serious conversations about expanding America’s space program since the Space Shuttle program was retired in 2011.

Investment into space exploration programs have led to innovations that have benefitted American consumers in ways which may not be readily apparent to most. NASA space research designed to keep machines operating and humans living in some of the harshest environments we know have led to advances in tractor trailer aerodynamics, nutritional formula for infants, safe drinking water, improved agricultural crop yield and much more. The 2017 issue of NASA Spinoff, a publication on tech transferred stemming from NASA research to private entities for commercialization, discusses innovations in temperature-regulating fabrics, fast-flow nanofiber filters for water purification, 3D printing, improved golf clubs, self-driving tractors and even light-analysis software for improved street and commercial interior lighting design.

However, any conversation taking place about the potential for NASA research to lead naturally to a wide range of consumer and industry products needs to be cognizant of the current landscape for U.S. patent rights, which are crucial for the spinoff of technological innovations from NASA or any other research federally funded by taxpayers. The 2017 U.S. Chamber of Commerce IP Index, which ranked the U.S. system of patent rights in 10th place after four straight years of 1st place finishes, noted that uncertain patentability regarding biotech and computer-related inventions was a key weakness of our country’s current patent system. Such uncertain patentability in those sectors stem from recent case law precedent laid out by the U.S. Supreme Court in cases such as Alice, Myriad and Mayo.

It isn’t far-fetched to consider that the current U.S. patent regime could seriously damage the legitimate commercialization of certain innovations springing from NASA research. This is a point underscored by NASA’s recent announcement that its Kepler spacecraft had made important discoveries in its study of exoplanets with the help of machine learning AI technology from Google. Machine learning and artificial intelligence are both heavily driven by software and software and other computer-related inventions have seen their patentability severely restricted by the Supreme Court’s two-step patentability test standard set out in Alice. This patentability standard has been applied by both the Court of Appeals for Federal Circuit and patent application examiners at the U.S. Patent and Trademark Office to the detriment of patent owners. A major tech giant like Google has the cash and distribution channels in place to protect its own machine learning innovations but if NASA were working with a smaller entity, it’s reasonable to suggest that such a taxpayer investment could be wasted if that smaller entity couldn’t protect its machine learning invention.

Further, economic data suggests that, if NASA investments into research cannot be protected by patents, it would come to the greater detriment of small businesses and startups than larger, more financially entrenched entities. NASA works with federal agencies like the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (SBTT) programs to collaborate with small businesses in the development of innovation research that can be commercialized. In April 2015, NASA announced that it selected research proposals from 254 small business entities, as well as another 39 proposals from academic institutions, to develop technologies which NASA can use for missions to Mars. Such reliance on the small business sector is also seen in academic tech transfer activities, another sector which is largely funded by the U.S. federal government. Academic tech transfer licensing surveys have found in recent years that 70 percent of academic inventions are licensed to small business.

Every single American taxpayer should want the investments made by their federal governments to be ones which provide meaningful benefits to the general public of this and other nations. As long as U.S. patent law remains overly wary of software and biotech innovations, those two incredibly important sectors of the economy will suffer a lack of competition and innovation that will mitigate the value that could otherwise be achieved through investments by federal agencies like NASA.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 3 Comments comments.

  1. Edward Heller January 1, 2018 1:51 pm

    The belief in manifest destiny, despite having a somewhat checkered legacy, is a principle which had been indelibly etched into the American psyche back in the 19th century. The somewhat vague notion that it was the destiny of the United States and its citizens to march westward towards the Pacific Ocean, populating the landscape along the way, may not have been a popular idea among all Americans (Abraham Lincoln was one opponent of the idea) but it’s tough to deny its effects on the United States of today.

    All I can say to this nonsense is “54° 40′ or fight.”

  2. Benny January 2, 2018 5:57 am

    Steve,
    let me see if I’ve got this right…the taxpayer foots NASA’s bill for R&D, but the taxpayer doesn’t gain the full benefit unless the fruits of the labour are protected by private property rights, to which the taxpayer has no free access? (I don’t pay US taxes).

  3. Anon January 2, 2018 7:45 am

    Benny,

    Perhaps you should look to the stellar example already provided in US law for Federally funded research. See, generally, the Bayh-Dole Act (and note that prior to the Act, there was a definite malaise that attached to government funded research).

    The “extension” here is not really that new or startling.