Can a Human Patent a Space Alien’s Invention?

The 56^th anniversary of the first broadcast of Star Trek just passed on September 8. I recently moderated a panel discussion at the Star Trek convention in Las Vegas, titled “Patents in the Future,” where I asked one of my favorite patent questions, one that most patent attorneys get wrong. If I find an alien invention and figure out how it works, can I patent it? I usually get the impatient answer “no” because I didn’t invent it—isn’t that obvious? But actually that’s not correct. I can get a patent.

A Country Only Has Jurisdiction Over its Own Citizens

The first thing to understand is that any country only has jurisdiction over its own citizens, and so U.S. patent law, for example, only applies to an inventor who is a U.S. citizen. We forget this because these days most countries recognize IP rights worldwide. This is only the case, however, because of IP treaties like the Patent Cooperation Treaty (PCT), the Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), the Berne Convention, and in this example, the Paris Convention for the Protection of Industrial Property of 1883. This treaty established the “right of priority,” such that an early invention in one country is considered prior art to an invention in another country. And even then, the treaty only applies among the countries that have signed the treaty, of which there are currently 179.

Pirated Technology was Historically Patented

Since the Patent Act of 1793, the United States granted patents to many Americans who had pirated technology from other countries while also barring foreign inventors from getting U.S. patents. In fact, that’s what many early American inventors did, including Francis Cabot Lowell who “invented” the Power Loom, the design of which was taken from England’s Edmund Cartwright’s power loom as a result of espionage during the War of 1812. Famed inventor Samuel Slater sailed around the world in 1789, presenting himself as a simple farmhand. He then memorized the workings of inventions he came across, including Richard Arkwright’s patented spinning frames, then filed a U.S. patent for the first water-powered textile mill, becoming very wealthy. President Andrew Jackson dubbed him the “Father of American Manufactures.” The English dubbed him “Slater the Traitor.”

Modern Examples of Questionable Patents

There are even easier ways of obtaining patents on space alien technology. Australia, China, and Serbia, for example, have what are called “petty patents” that are issued without being examined. The idea is that the patent can be granted quickly, but no one has any idea whether the patent is valid. That requires a separate examination process that is typically initiated only in the case of litigation. So in some countries, a human can easily and quickly get a patent on a Klingon mind sifter.

These days, Russia is refusing to recognize intellectual property rights from the United States and other countries sanctioning it for its war in Ukraine, so it’s likely that a human could get a Russian patent on a Romulan cloaking device. At least assuming that the Romulans also disapprove of the war in Ukraine.

And from a practical viewpoint, the United States and other countries on Earth have a first-to-file patent system, though technically the United States has a first-inventor-to-file system. The patent can be invalidated if someone shows that it was actually invented by someone other than the patent filer over a year before the filing. But in practice, who could prove that a Vulcan produced a mnemonic memory circuit more than one year prior? Would that be an Earth year or Vulcan year? And would a Vulcan even be allowed to testify in court to that effect? And that’s assuming it could speak English, or a universal translator could be found. And patented.

IP Laws Don’t Recognize Non-Humans

Further, given today’s intellectual property laws, it’s not likely that an extraterrestrial would be recognized as an inventor. In every country where the issue has arisen, only humans are eligible for IP protection. A monkey recently applied for a copyright registration for a selfie, but U.S. courts denied it. And an artificial intelligence machine (AI) applied for a patent in various countries, but was eventually denied in the United States, the United Kingdom, and Europe. Bad news for Data (the AI synthetic life form). So the precedent goes strongly against a Gorn getting a patent on a diamond projectile weapon, leaving the door open for a human to patent the invention.

In conclusion, the “obvious” answer is not always the right one, intellectual property laws are complex, especially in relation to extraterrestrials, and I fulfilled my childhood dream of speaking at a Star Trek convention. I even had some groupies!

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