On November 24, the National Aeronautic and Space Administration (NASA) launched its first in-space competition. The new competition, called the Cube Quest Challenge, offers up to five million dollars to those competitors who can demonstrate the usefulness of CubeSats as “viable deep space explorers.” These CubeSats will face challenges such as functioning in lunar orbit, demonstrating burst data transmission, and maintaining continuous error-free signals from distances up to 2.5 million miles (10 times the distance from the Earth to the moon). Although CubeSats traditionally measure 10x10x10 centimeters (1U), NASA is permitting 6U equivalents in recognition of the extraordinary tasks in the challenge. Teams will compete both for a cash prize and for a spot on the Orion spacecraft and NASA’s 2018 Exploration Mission (EM-1).

With all of this effort, what provisions are there for protection of the intellectual property rights of competitors? Rule 2.I of the November 13, 2014 “Operation and Rules” says:

Notwithstanding anything to the contrary in these rules, NASA claims no intellectual property (IP) rights from the Competitor Team. All trade secrets, copyrights, patent rights, and software rights will remain with each respective Competitor Team.

To the extent the Competitor Team owns IP resulting from its participation in Challenge, the Competitor Team agrees to negotiate in good faith with NASA for a grant of a nonexclusive, nontransferable, irrevocable, license to practice or have practiced for or on behalf of the United States, the intellectual property throughout the world, at reasonable compensation, if NASA chooses to pursue such a license.

The question, of course, remains: how binding is an agreement to negotiate in good faith? Although one court has found this to be a contractual duty, SIGA Technologies, Inc. v. PharmAthene, Inc., 67 A.3d 330 (Del. 2013), the law is relatively unclear. Given the complexities of the contractual and intellectual property issues here, and the amount of proprietary technology involved, one hopes the competitors are thinking about their futures on the ground as well as in space.

Sources: http://www.engadget.com/2014/11/25/nasa-cubesat-contest/ http://www.nasa.gov/cubequest/#.VHSk9ItFPTQ http://www.nasa.gov/sites/default/files/files/CCP_CQ_OPSRUL_001.pdf

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