Even though it doesn’t have any legs (yet), Robonaut 2 is making great strides on the International Space Station. After months of resting comfortably in the newly installed Permanent Multipurpose Module, Robonaut 2, or R2 as it is more affectionately known, has taken a giant leap for robot kind. On May 2nd, R2 began serving the ISS crew in its mission to perform tasks which are too dangerous or mundane for ISS astronauts to perform. The semi-autonomous robot’s first task is to monitor air velocity from station vents. This is perhaps a lowly beginning for space robots, but a necessary step for the currently legless anthropomorphic creation.
R2 is the product of a successful development partnership between automotive giant GM and space exploration behemoth NASA. In addition to flying the first humanoid robot to space, more than 40 patents and patent applications have blossomed from the R2 development program. Like many other private company/government agency relationships, the partnership between GM and NASA was heavily influenced by federal laws that govern the agency involved. GM and NASA entered into a Space Act Agreement (SAA). The structure of the SAA was chosen in part to ensure that GM could protect and retain an interest in the intellectual property they developed while working with NASA on next-generation robots.
For those of you unfamiliar with the R2, the robot was developed at Johnson Space Center in the Dexterous Robotic Laboratory. A principal goal of the project is developing humanoid robots which can autonomously or semi-autonomously operate alongside astronauts. A humanoid form factor was chosen so that the robots can use the same tools as their flesh and blood counterparts. This means that NASA only has to ship one set of tools to the ISS, instead of a human set and a set designed for robotic use. Currently, R2 is operating on the ISS. R2 will initially perform simple tasks like monitoring life support system airflow, freeing human astronauts to carry out more challenging tasks. R2 is equipped with stereoscopic cameras and the ability to be remotely controlled by astronauts on the ISS or from a ground station. This teleoperation has a haptic feedback component, enabling the human operator to “feel” the forces encountered by the robot during operation. Because R2 has a body, including hands, designed to mimic the abilities of a human, teleoperators may one day be able to perform EVAs using R2’s successors, or to perform remote surgeries on sick astronauts. Currently, R2 is not space rated. R2’s electronics would be fried by the radiation and extreme temperature shifts outside the ISS.
Robonaut 2 was jointly developed by NASA and General Motors. The General and NASA began their relationship in 2007 when the two groups signed a space act agreement (SAA). Over the next four years, a pair of R2 robots were developed and constructed under a Space Act Agreement. R2b actually ended up on the ISS, while R2a has been outfitted with a four-wheeled base, enhancing its mobility. NASA is a “title taking”organization which means that under many circumstances, intellectual property rights to technologies developed by large companies under NASA contracts like SAAs must be transferred to NASA. The Bayh-Dole Act insulates small companies working with NASA from this title taking and, depending on the circumstance,
SAAs can be structured to avoid it too. The SAA between NASA and GM was structured in this manner. The NASA/GM SAA is a reimbursable SAA. That is, NASA and GM are working together on the project, but NASA isn’t paying anything out of pocket for development. GM actually pays NASA for the use of facilities. This unfunded SAA gives GM the right to hold the patents on all the technologies they develop for Robonaut 2. To date, some 40 patents or patent applications have been filed on technologies developed for the Robonaut program, including teleoperation technologies and human grasp assist devices. GM hopes to implement many of the technologies developed under this program in its factories so that human and robot workers can produce cars more efficiently.
The FAA determined that launches of the Falcon 9/Dragon are more dangerous than allowed under the law, but gave SpaceX a waiver to fly.
Rocket science, rocket artistry, momentum-altering sorcery. Whatever term you apply to it, launching large rockets is serious business with the capacity to do a lot of harm if things go awry. Concerns about launch vehicles and their spacecraft inadvertently falling from the sky and hurting people or property loomed large in the minds of men in the early days of spaceflight. Before the Space Shuttle first flew, international law established that countries are responsible for the damage caused by spacecraft launched from their nation, regardless of where the damage occurred or who launched it.
In order to regulate and monitor the space transportation industry and share the burden of this potential liability, commercial space launch companies must apply for and obtain launch licenses from the FAA. The FAA cannot permit a launch unless the total expected average number of casualties (Ec) for the launch and subsequent mission is less than .00003. In other words, the FAA cannot issue a launch permit through the traditional launch licensing process if there is a better than 30 in a million chance that people will be harmed by a commercial launch. The FAA has outlined the general methods for making Ec calculations, but sometimes launch vehicle operators and the FAA arrive at different Ec values.
An Ec analysis is a statistical calculation which quantifies the risk to the public from debris, blast hazards, and toxic materials from a proposed launch and mission. The FAA recommends combining deductive and inductive analyses of vehicle failure in order to calculate Ec and has provided guidance for calculating Ec. 14 CFR 417.107 prohibits the launch of an expendable launch vehicle if the total expected average number of casualties (Ec) for the launch exceeds 0.00003 (30 x 10-6 or 30 in a million) for risk from debris. It also prohibits a mission involving a reentry vehicle when the Ec for both the launch and the reentry together exceed .00003 for debris. Launch vehicle designers like SpaceX perform risk analyses during the design and testing process and arrive at an Ec value for their vehicles and flight profiles.
The FAA makes their own independent Ec calculation for missions and vehicles. As SpaceX President Gwynne Shotwell put it in an interview with Discovery News, “It’s not like [the government take] our word for what we tell them. They go do their own independent analysis.” Fortunately, the FAA may allow launches, like the upcoming Falcon 9 launch to the International Space Station, where the FAA calculates an Ec that is higher than .00003, if the FAA determines that waiving the Ec requirement will not jeopardize the public, jeopardize national security, and will be in the public interest.
For both the historic 2010 re-entry of the Dragon capsule and SpaceX’s upcoming trip to the ISS, the FAA has calculated an Ec for the missions of more than 30 x 10-6. For its 2010 mission, SpaceX initially calculated the mission Ec to be 21 x 10-6. The FAA, however, calculated an Ec of 47 x 10-6. SpaceX successfully petitioned the FAA for a waiver of the Ec requirement by pointing out some of the vehicle’s safety systems, including Dragon’s ability to monitor its safety-critical systems in real-time and successfully deorbit with the loss of two entire propulsion modules. The FAA approved the waiver application in part because doing so would encourage the growth of the commercial spaceflight industry and further the goals of the COTS program. By law, the FAA shall encourage commercial spaceflight activities. This waiver was issued November 30, 2010, less than two weeks before Dragon C1 flew.
According to the FAA, past Titan IV launches were 2-3 times as likely to cause harm from falling debris than COTS Demo Flight 2.
The FAA has determined that the upcoming COTS Demo Flight 2 has an Ec of between 98 and 121 x 10-6. On April 17, 2012, the FAA notified SpaceX that they will again waive the Ec requirement and allow the COTS Demo Flight 2 and the reentry of a Dragon capsule. In the notice of waiver, the FAA points out that the Air Force has previously approved a government launch of a Titan IV rocket where the risk ranged from 145 to 317 in a million. They also point out that debris risk from the Space Shuttle was routinely higher than the FAA’s current commercial launch requirements, in part because of the significant number of visitors present at the launches.
It is encouraging to see the FAA taking their directive to encourage commercial spaceflight activities seriously by relaxing potentially strenuous safety requirements. The current 30 in a million requirement was instituted before many of the newer entrants to the space transportation industry began operating. In light of SpaceX’s frequent requests to have this requirement relaxed and historic examples of it being waived, such as the previously mentioned Titan launch, perhaps the FAA should relax the base rule, in order to avoid the cost to both company and taxpayer of frequent waiver applications. What do you, dear readers, think?
"I'm sorry, Dave, I'm afraid I can't do that. Your license only applies on Earth, not outer space."
Pierce Brosnan declared the plot of his 1999 James Bond film The World is Not Enoughconvoluted and mystifying, a suitable description of Cold War villain-based movies more than a decade after the Cold War had effectively expired from hypothermia. At first glance, “convoluted and mystifying” is also an apt description for licensing deals. The beauty of a license is also its curse. You can make the license look almost any way you want, granting virtually unlimited rights or giving only the slimmest of rights to use the covered invention in Palatka, Florida on the 3rd Tuesday of every month. It is extremely important to consider each and every word in a license agreement in terms of how the technology involved will actually be used. For example, consider the following language that might appear in an R&D contract for the development of a new type of RCS thruster for satellites: the Satellite Manufacturer “shall retain a nonexclusive royalty-free license [to the developed technology] throughout the world.” What good does a merely worldwide license for a new RCS thruster do a satellite manufacturer? They need a license that actually applies to where they will use the developed technology: outer space.
Most intellectual property licensing agreements define the territory in which the license can be used. Non-exclusive licenses may grant rights to use the covered invention in limited territories (e.g. rural Florida towns, the Asia, North America). Non-exclusive licenses of this type may be more desirable for the party receiving the license because the license costs less to acquire and/or maintain. For the party granting the license, they have the opportunity to find other people to sell licenses to, providing additional revenues. A win-win situation!
Many licenses are “exclusive” and grant the ability to use an invention “throughout the world.” But is that really an exclusive license? For most intellectual property licensing agreements, the technology involved will be used, at most a few miles above the our planet’s surface, but for aerospace technologies, the allegedly exclusive nature of a license granting “worldwide” rights gets a bit dicey around the ionosphere because at some point the world ends, and space begins.
There is no recognized definition of where space begins. The Patents in Space Act (35 USC §105), specifically applies US patent law to public and private US spacecraft in outer space, therefore patent holders potentially have patent rights that exist beyond our planet. A patented satellite RCS thruster, like the one in the above example can be licensed for use both on the planet and in outer space, however many licensing agreements only grant rights on a worldwide basis. Failure to grant rights for using an invention in space leaves the inventor (or the company the inventor is employed by) with patent rights to the invention when it is used in outer space and potentially makes the licensee an infringer if they use the invention in outer space.
Ensure that license agreements with NASA enable use of the technology in space as well as on Earth. Photo Credit: NASA
Many existing licenses only address Earth-based rights. For example, Creative Commons licenses grantworldwide, royalty-free licenses. FAR provisions in SBIR contracts and sample NASA licensing agreements also address only worldwide grants of intellectual property rights. It should be noted that NASA negotiates licenses of its patented technologies on a confidential case-by-case basis, therefore terms of noted commercial space licensing agreements such as Bigelow Aerospace’s licensing of inflatable space habitat technology are unknown at this time. One assumes that those licensing agreements specifically address universal licensing rights. By contrast, the entertainment industry has moved toward granting intellectual property rights “in all media, throughout the universe.” Companies such asNBC, PBS, and Lucasfilm Ltd have begun to include licensing terms which apply both on earth and in outer space by adopting similar language. Licensing agreements granting rights “throughout the universe” more directly address the needs of companies operating satellites, space components, and orbital and suborbital launch vehicles.
In order to ensure your company can freely use all the necessary technology to accomplish its goals, make sure intellectual property licensing agreements specifically apply everywhere you and your company foresee utilizing the technology, including outer space, because when it comes to aerospace technologies, worldwide rights are truly not enough.
Happy creating!
A hat tip to Matt Kleiman of Draper Laboratories for writing the article that inspired this post.
Almost every modern business is organized under some sort of limited liability platform. Perhaps this is in response to what the press has dubbed a “frivolous lawsuit problem.” Nevertheless, these platforms are a great starting point for any business, especially when it comes to insulating the owners from external liabilities like suits from customers. Significantly less press attention is focused on the fact that most business litigation is actually a result of internal conflicts, such as suits between and among owners, shareholders, directors, partners, members, and officers. A problem I often come across is that most people do not understand that, in the future, serious complications among owners and partners can arise due to merely electronically filing the bare minimum to get your limited liability status.
When I am retained by entrepreneurs to help start a business, the last topic anyone wants to discuss is circumstances that would trigger the dissolution of their newly formed organization. I usually get the same response, “we are all good friends and we will work that out.” The fact is, entire books of case law exist that are filled with cases beginning with a phrase similar to, “they were all friends, and then…”
In Florida, whether you choose to be a Florida Corporation, a Florida Limited Liability Company, or a Limited Partnership, the respective business organization statute calls for an additional internal governance document to be drafted. These are bylaws for Corporations, operating agreements for Limited Liability Companies, and partnership agreements for Limited Partnerships. In my opinion, the internal governance document is the single most important document an organization may have. It is a binding agreement between the business owners and managers, outlining internal relationships, as well as duties to the business and each other. It explains your rights as an owner, the procedures for voting and resolving disputes, as well as, the un-mentionable: dissolution. Most importantly, this document is, after all, an agreement and, in most cases, your agreement overrides any statutory rules that contradict it.
So that fact that all the owners of the business are currently great friends, is actually the best reason to resolve all of the issues before an event occurs that can only be resolved through litigation because there was no agreement.
As I explain to anyone that I assist with business formation, there are lots of free and cheap resources online that can aid in the legal end of starting a business. In fact, most of the initial electronic filing, registering of a tax ID number, and a state sales tax number, can easily be done without attorney supervision or paying one of these incorporation services that we hear advertised on the radio. The internal governance documents, however, can get rather complicated. The owners of a newly formed business can receive a great benefit from having their legal duties to each other, as well as their organization, thoroughly explained to them. If I could recommend having an attorney for any one part of the business formation, it would be to assist in drafting the internal governance documents.
That being said, I know that not every business, or start-up, is in a position to afford an attorney and, in the business world, one will not be assigned to you. I think that people would be surprised how many business attorneys, such as myself, would be willing to provide their assistance solely to form that initial relationship, and to help your business get to a position where you can not only afford to, but are glad to retain us to assists with all your legal needs.
As we approach the April 17, 2012, tax filing deadline, it is only appropriate that I talk patents and taxes. I was recently asked by a client if it is possible to deduct patent-related costs for tax purposes? Hmm…well believe it or not, this is the first time I have been asked this question in over 15 years of practicing intellectual property (IP) law! So, with as much as 80% of the value of a U.S. publicly-traded company coming from intangible assets, whether an enterprise may write off expenses associated with creating or acquiring these intangible assets (especially patents) seems to me to be an important question to address.
Before addressing this important question, one caveat: I would never recommend getting IP advice from a tax lawyer. Thus, I surely am not suggesting that you take tax advice from an IP lawyer. With this in mind, here are some knowledge tidbits that you can use to burden your tax advisor.
First, you need to determine what category of patent you are dealing with when you are determining whether expenses in acquiring the patent are deductible (i.e., whether these costs may be “written off”). The categories include newly-created patents and acquired patents:
Newly-Created Patents: The costs of obtaining patents (i.e., perfecting a patent application into an issued patent) may typically be deducted as research or experimental expenditures under IRC 174. These costs include attorneys’ fees (yeah!). Such newly-created patent costs are typically deducted as current business expenses.
Acquired Patents: The costs of obtaining (i.e., purchasing) patents may typically be written off only by amortizing these costs over a 15-year period. (This period is fixed, and therefore the life of the patent has no effect on the amortization time line.)
See IRS Publication 535, and when that’s totally confused you, seek professional tax advice!
On March 20, 2012, in an opinion written by Justice Breyer, the United States Supreme Court issued a unanimous decision in Mayo v. Prometheusholding the claimed medical diagnostic methods were ineligible for patent protection under Section 101 of the Patent Act.
First, some quick legal background. U.S. Patent Law recognizes four broad categories of inventions eligible for patent protection: processes; machines; article of manufacture; and compositions of matter. The U.S. Supreme Court, however, has long recognized that there are three exceptions to these four broad patent-eligibility categories: laws of nature; physical phenomena; and abstract ideas.
The popular press (and a lot of the legal press) reporting this latest Supreme Court case has used sensational headlines announcing the death of medical diagnostic and personalized medicine patents. This reminds me of the press frenzy following the Supreme Court’s June 2010 decision in Bilski, where the press prematurely announced the demise of software and business method patents. To all this, I say “stay calm folks!”
Novelty and obviousness aside for a minute, consider the following hypothetical:
A method for treating the hair of a human subject, comprising the steps of:
(a) applying water to the subject hair until it is completely saturated;
(b) applying a shampoo solution to the subject hair in a vigorous manner until said shampoo solution completely covers the subject hair;
(c) rinsing the subject hair with water until said shampoo solution is no longer visibly present in the subject hair; and
(d) repeating steps (a)-(c) until the subject hair is clean.
Does this claim recite patentable subject matter? Well, the answer is an obvious “no!” (Pun intended.) As the Europeans would say, this claim has no “technical effect!” Similarly, the patent involved in the Mayo v. Prometheus case – U.S. Patent No. 6,355,623, entitled “Method of Treating IBD/Crohn’s Disease and Related Conditions Wherein Drug Metabolite Levels in Host Blood Cells Determine Subsequent Dosage,” issued in March of 2002 – had no technical effect. Representative Claim 1 of that patent is as (un)remarkable as my hypothetical claim above:
A method of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder, comprising:
(a) administering a drug providing 6-thioguanine to a subject having said immune-mediated gastrointestinal disorder; and
(b)determining the level of 6-thioguanine in said subject having said immune-mediated gastrointestinal disorder,
wherein the level of 6-thioguanine less than about 230 pmol per 8108 red blood cells indicates a need to increase the amount of said drug subsequently administered to said subject and
wherein the level of 6-thioguanine greater than about 400 pmol per 8108 red blood cells indicates a need to decrease the amount of said drug subsequently administered to said subject.
I don’t think I would have been so bold as to submit such a claim to the USPTO in an application – these steps, to me, are pure mental steps capable of being performed by a doctor, with not even any software, computer or other system components recited!
The Supreme Court’s defined its task in the Mayo case as follows: “[T]he question before us is whether the claims do significantly more than simply describe these natural relations. To put the matter more precisely, do the patent claims add enough to their statements of correlations to allow the processes they describe to qualify as patent eligible processes that apply natural laws?” In answering this question negatively, Justice Breyer stated: “If a law of nature is not patentable, then neither is a process reciting a law of nature, unless that process has additional features that provide practical assurance that the process is more than a [patent attorney’s claims] drafting effort designed to monopolize the law of nature itself.”
IMHO, I don’t see much new law here … just some common sense application of well-established patent law. Stay calm.
Although not contractually required to do so, many employers offer their management-level employees aseverance package in the event of a reduction-in-force or some other non-disciplinary event which requires an employer to terminate a relationship with a managerial employee. The terms and compensation contained in severance packages usually depend upon salary, years of service, and work performance and/or value of the employee to the employer. However, if an employee can show that the terms of a severance package offered to them are less favorable than those offered to other, similarly situated employees, the employee may be able to state a claim for discrimination.
In the case of Gerner v. City of Chesterfield, Virginia (2012), the United States Court of Appeals for the Fourth Circuit reversed a lower court ruling from the Eastern District of Virginia and found that although a severance agreement is offered upon employment termination and is not a contractual right, it is nevertheless an employment benefit upon which a discrimination claim may lie. Finding that the district court judge (Hudson, J.) erred in his analysis of the legal standard, the appellate court held Title VII protects current and former employees from discrimination, as well as those who have not been hired and have been discriminated against in the hiring process. Further, the Court found that Ms. Gerner's allegations that she was offered a less favorable severance package than her male counter-parts under the City’s reduction-in-force plan, were sufficient to allege an adverse employment action for a gender discrimination claim. In making its ruling, the Court relied upon U.S. Supreme Court precedent and decisions from other Circuit Courts.
This decision by the Fourth Circuit, which is the highest federal appellate court for Virginia, Maryland, West Virginia, and the Carolinas, is a reminder to employers that they must be vigilant in making sure that employment benefits (even severance packages which are often viewed as “voluntary” or “discretionary”) are provided on an equitable basis. Alternatively, employers must make sure that they have a strong, non-discriminatory, reason for any difference in the provision of such benefits among similarly situated employees.
Many of my small- and medium-sized enterprise (SME) clients who have filed U.S. trademark applications have been contacting me lately about “invoices” they have received in the mail. All of these official-looking “invoices,” however, have turned about to be scams.
Trademark-related solicitation (“trademark spam,” if you will) has become an increasing concern of the US Patent and Trademark Office (USPTO). In fact, the USPTO added a warning notice last month to its trademarks homepage. Why is this happening? Well, the USPTO’s databases are public. Thus, solicitors have been using trademark registration and application data to send letters and emails to applicants offering phony legal and registration services. In order to fool even the most spam-conscious applicants, such solicitors adopt corporate names that include “United States” or “U.S.” in an attempt to fool their targets. Unlike the spam we are all accustomed to, however, trademark spammers format their misleading messages to resemble official government notices. With an emphasis on application data and filing dates instead of a smiling monkey and congratulatory balloons, many trademark applicants are paying the requested fees before realizing they are being scammed.
What do you do? Read all your mail and emails carefully. Be especially wary of those that ask for money. All official USPTO mail will be sent from Alexandria, Virginia, and emails will be sent from the “uspto.gov” domain. If you do mistakenly fall victim to trademark spam, file a report with the Federal Trade Commission at www.FTC.gov. The USPTO would also like to hear about such trickery. Thus, also send an email to TMfeedback@uspto.gov detailing the spammer and whether the requested fees were paid for the phony, offered legal and registration services.
A global museum of such scam notices (both patent and trademark) can be found here. Stay vigilant!
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