"Baby It's Cold Outside": IP Rights in Antarctica

It is August on the eastern littoral of the Mediterranean Sea. That can mean only one thing--unless you are lucky enough to be hugging the coastal beach, or are up in the hills, you face a daily dosage of temperatures over 30 degrees Celsius and a humidity factor several times that. This Kat dislikes air conditioning and the oppressive sense of being hermetically sealed in a room or office but, as he gets on in years, he has learned to make compromises in that regard. Against that backdrop, his mind began to wander--where is the ultimate place to flee from this summer discomfort? The answer--Antarctica.

From there, it was only a modest leap to the next question--ok, so how do I make a living as an IP lawyer there? This Kat then began to dig deeper into the IP situation in Antarctica. The starting point for any discussion of possible rights seems to be the Antarctic Treaty, which is described on the Secretariat website here thus:

"The main purpose of the Antarctic Treaty, which was signed in Washington on December 1, 1959, is to ensure 'in the interest of all mankind that Antarctica shall continue for ever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord.'"

The Secretariat goes on to discuss the related Environmental Protocol, signed in 1998 here, as follows:

"Antarctica has been designated as 'a natural reserve, devoted to peace and science'. Activities are subject to regulations concerning environmental impact assessments, protection of fauna and flora, waste management and others. All activities relating to Antarctic mineral resources, except for scientific research, are forbidden."

These comments by the Secretariat seem to send the message that when it comes to exclusive rights, including IP, with respect to Antarctica, the public interest is paramount. That does not mean that commercial interests are not actively engaged in Antarctica. This was well discussed in the 2003 report--The International Regime for Bioprospecting Existing Policies and Emerging Issues for Antarctica", produced by the United Nations University/Institute of Advanced Studies here. As for IP rights, the report could only note that legal issues relating to the ownership and protection of bioprospecting resources, as well as ownership of resulting commercial products, were questions that required further attention. Indeed, the report queried whether such activities are even consistent with the Antarctic Treaty.

This Kat then found a wonderful succinct summary, dated November 30, 2008, of the IP position regarding British Antarctic Territory, which stated:

"British Overseas Territory. This territory is not 'inhabited' in the proper sense of the word, except for scientific research teams and military personnel. 

Own laws 

No. There is no Intellectual Property Right (IPR) legislation for this territory.

Extension

Patents: There is no IPR registration for this territory.

EP(UK): There is no IPR registration for this territory.

Trade marks: There is no IPR registration for this territory.

Designs: There is no IPR registration for this territory."

The upshot is that there appear to be no IP rights available with respect to Antarctica. As hot as it is, this Kat's future as an IP lawyer there seemed bleak.

Against this background, and as this Kat continued to sweat profusely in the

cloudless summer heat of Tel-Aviv, he ran across an item from February 25, 2012 (or was that April 1?) here, seemingly posted by Gregory Stobbs, and apparently under the auspices of the U.S law firm Harness Dickey, entitled "Antarctica Patent Office Celebrates Opening." In the name of transparency, this Kat brings the entire text.

"Delegates met today on Ross Island, Antarctica, to officially celebrate the opening of the Antarctica Patent Office. Facing ever increasing fees and ever growing backlogs at the USPTO, applicants are turning to the Antarctica Patent Office in greater and greater numbers. The fees are low, the backlog nonexistent.

Antarctica has no judicial system. There are no patent trolls lurking among the penguins. With no judicial system, and no domestic market one may wonder why Antarctica patents are in such demand. The answer lies in an ill-publicized cap-and-trade provision of the America Invents Act. The provision, which was slipped into the Senate version of the bill and subsequently ratified, sets limits on the number of patent applications that may be prosecuted in certain earmarked technologies as a way of addressing the backlog.

Under this provision, the law sets a limit or cap on the number of patents that may be prosecuted in each of a list of earmarked technologies. The limit or cap is allocated to the USPTO in the form of application permits which represent the right to prosecute a specific number of the earmarked patent applications. The USPTO is required to hold a number of permits (or prosecution credits) equivalent to their earmarked pending applications. The total number of permits cannot exceed the cap, limiting total patent applications to that level. When the USPTO needs to increase its application permits it must designate another jurisdiction which has utilized fewer permits to prosecute applications in the earmarked category. Although the designated jurisdiction prosecutes the patent, the patent issues under the auspices of the United States government. The Antarctica patent is, for all intents and purposes, a U.S. patent.

As drafted, the provision was intended to be reciprocal. Any country that adopted a similar provision could trade prosecution credits with the United States. Unfortunately no other country saw the wisdom in this. Thus the provision lay fallow, until last November when an unincorporated research settlement on Ross Island, Antarctica opened an office to process applications in conformance with the requirements of the U.S. the cap-and-trade provisions.

Three months later, business is booming. The Antarctica Patent Office has prosecuted 123,009 applications since opening, issuing some 37,209 U.S. equivalent patents. According to Dr. Arne Saknussemm who currently acts as Commissioner of the Antarctica Patent Office, the most popular earmarked applications are business method applications. These are prosecuted quite rapidly, Dr. Saknussemm states, because the Antarctica Patent Office follows the “anything under the sun” rule. “Most business method patents are expected to be prosecuted during the season from October through February during which time the sun rarely sets for more than an hour or two,” Saknussemm states."

It is noted that this is not first time that the same Arne Saknussemm has been connected with ice and adventure. Jules Verne, in his novel, Journey to the Center of the Earth, refers to Saknussemm, having once been an Icelandic alchemist, who claimed to have discovered a passage to the centre of the Earth from Iceland. Dr. Saknussemm has apparently had a long and prosperous life, spanning nearly a millennium. A pity for this Kat however, because it means that the position of Patent Registrar in Antarctica is not available. For the time-being, at least, this Kat will be staying put, temperature and humidity not withstanding.

More on Journey to the Center of the Earth and Arne Saknussemm here.