The global push towards renewable energy production has increased demand for a variety of resources like lithium and other metals used in battery storage technologies. This spike in demand has squeezed existing supply chains and prompted the exploration of new mineral and metal deposits.
Earth’s seabed has vast deposits of a wide variety of minerals and metals including rare earth elements; a critical component in advanced battery manufacture. In the Pacific and Indian ocean and along the Mid-Atlantic Ridge, more than 1.5 million km2 of seabed has been reserved for mineral exploration.
A brief analysis by Glasshouse Advisory indicates that the number of patent filings referring to deep sea mining or underwater mining has grown year-on-year for the past 10 years at about 17%. Clearly there is commercial interest in seabed mining despite the environmental concerns surrounding this activity.
A significant portion of the seabed’s mineral and metal deposits are held in international waters. As far as intellectual property (IP) rights are concerned though, there is no defined jurisdiction for international waters and IP rights are registered and enforced on a jurisdictional basis. This presents potential issues when looking to protect seabed mining activities as an IP rightsholder may have few options available to protect and enforce their IP in international waters.
A case in point
For example, if a company developed technology relating to the extraction of polymetallic nodules in international waters, how should they develop an IP strategy to best protect their technology given there is no jurisdiction in which to enforce their technology when extracting polymetallic nodules?
If the technology relates to a device that can be used for polymetallic nodule mining, then IP strategies should focus on protecting the device itself and the manufacture and sale of the device to prevent any third party from unauthorised manufacture and sale of the device. An IP strategy like this would at least indirectly control how the device is used and by whom.
However, if the technology relates to a process of extracting polymetallic nodules from the seabed, then an IP strategy will need to look beyond the process itself. For example, if a vessel performing the process needs to dock at port in a specific jurisdiction – such as for offloading or processing mined ore, or if part of the process needs to be performed in a specific jurisdiction – then the IP strategy should focus on seeking protection of the process in the specific jurisdiction along with the associated activities downstream or upstream of the process.
Typically, this type of IP strategy would rely more on contributory-type infringement for enforcement (and may include product-by-process type claims, for those jurisdictions that provide such protection). However, recent US judicial review has found that, in some circumstances, domestic infringement can cause and permit recovery of damages beyond the US patent jurisdiction. Thus, an IP strategy which captures contributory-type infringement may, in some circumstances, provide commercial protection for activities in international waters (i.e. if you also own a suitably-framed US patent).
If the technology relates solely to the process of extracting polymetallic nodules from the seabed and it is not possible to rely on contributory-type infringement for enforcement, the IP rightsholder may only be able to rely on trade secrets. In this case, quite a different approach to IP and technology management is required.
Bespoke approaches are a must
Traditionally, mining activities are performed in defined jurisdictions and the development of technology for mining (such as a device and its resulting use), means that a single type of IP could be used to cover various aspects of the technology. For example, a single patent application could be filed covering all aspects of the technology, and divisional applications could then be filed to separately protect each aspect of the technology.
Approaches like this are probably not well suitable for seabed mining in international waters, and instead multiple IP strategies may be required to protect different aspects of the technology rather than grouping them all into one. For example, a patent application may be used to protect a product but use of the product may be protected by trade secrets. Other avenues for commercial protection such as contractual controls with third parties may also be required.
Due to the patent requirement to disclose any invention in full to be granted a patent, using multiple IP protection strategies requires careful consideration and must be developed early during commercialisation; not as a reactionary measure or afterthought. Striking the balance between the use of patents and trade secrets requires careful consideration to ensure the trade secret is not disclosed but that an enabling disclosure can be provided.
What's space got to do with it?
Like international waters, space is not subject to national appropriation, thus space mining activities are conducted in the absence of a defined jurisdiction. At first glance, the IP strategies used to protect technology for seabed mining might seem to be applicable to space mining.
However, there are some differences between space and seabed mining in international waters that complicate matters including;
i. there is no governing body per se that is responsible for granted mining rights in space, whereas the International Seabed Authority (ISA), established by the United Nations Convention on the Law of the Sea, regulates seabed mining activities;
ii. space objects including devices used for space mining need to be registered in a jurisdiction, where the jurisdiction extends to the object itself, whereas no such extension of the jurisdiction is provided in international waters (apart from arguably a vessel used to perform a process).
In relation to (i), for seabed mining, the absence of adequate IP protection may be negated by the fact that there are other mechanisms for protecting commercial activities, such as mining licenses. For space mining no such mechanisms are available since (at this stage) space mining relies on a “first in, first served” basis.
In relation to (ii), for space mining, as the jurisdiction (e.g. the IP jurisdiction) in which the object is registered extends to the object itself, the use of control points (for example) may allow for protection of commercial activities. For seabed mining no such extension exists; i.e. for objects used for seabed mining. It may be that the jurisdiction in which the vessel used for seabed mining is registered, can act as a gateway for IP protection for seabed mining activities. Yet most vessels passing through international waters are registered in jurisdictions with weak or no IP systems, like Libya and the Marshall Islands.
Whether in space or international waters, protecting commercial activities performed in the absence of a jurisdiction requires the formulation of IP protection strategies that are more complex compared to the same activities performed within a jurisdiction. Consequently, IP protection strategies for these frontiers need to incorporate a greater contextual understanding of the proposed commercial activity, looking beyond protecting merely the technology itself.