India: (Indian) Patent Act & Nuclear Technology

Last Updated: 26 March 2014
Article by Vijay Pal Dalmia, Partner

Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court, Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India

Subsequent to signing of the U.S. – India Nuclear 123 Agreement, India no longer remains an "untouchable" in the nuclear world commerce group. Having obtained a nod from the NSG, India is expecting to usher in billions of dollar worth civilian nuclear technology.

However, provisions in the Indian Patents Act, 1970 make the road ahead rocky. The said Act is a result of Justice Ayyangar Committee's "Report on the Revision of the Patent Law" in 1959 and the same put in motion a participatory and transparent well-debated statute.

Section 41 of the Patents Act, 1970 ("Act") excludes invention in the field of atomic energy as falling within section 20 (1) of the Atomic Energy Act, 19622 from the ambit of the patent law. The issue as to whether a particular invention relates to atomic energy is left to the discretion of the Central Government. The inventions in the field of atomic energy, therefore, are non-patentable under the Indian Patent law.

Under Section 35 of the Act, if it appears to the Controller that the invention is one of a class notified to him by the Central Government as relevant for defence purposes, he may give directions for prohibiting or restricting the publication of information with respect to the invention or the communication of such information to any person or class of persons specified in the directions. The Controller is further required to notify the Central Government of the same. Further, Section 39 of the Act3 creates an embargo on Indian Residents applying for patents relevant for defence purposes or atomic energy outside India without prior permission. Any act in contravention of the secrecy directions or provisions of Section 39 of the Act, shall lead to the application for patent under this Act deemed to have been abandoned and the patent granted, if any, shall be liable to be revoked. Section 157A of the Act4 is a non-obstante clause which empowers the Central Government to not to disclose any information prejudicial to the interest of security of India. The explanation appended to the Section defines "security of India" to include any action necessary for the security of India which relates to, inter alia, fissionable materials or the materials from which they are derived.

It is also pertinent to note that presently, Indian law makes no distinction between atomic weapons and atomic energy. The security reason of the country appears to be the rationale for disallowing patents for atomic weapons. However, excluding the patents for inventions relating to atomic energy from the purview of the patent law, while ending the nuclear apartheid appears to be contradictory and illogical.

Indian companies have been lobbying with the Indian Government and have sought an early modification to the Atomic Energy Act, 1962 to facilitate the entry of the private sector in nuclear power generation.

Technology transfer to private players in a lacking stable IPR protection regime also appears highly unlikely and is a concern for the foreign companies. This issue assumes significance in the light of the Indian companies looking forward to forming JVs with foreign companies seeking to invest in nuclear power plants in India.

To take forward the civilian nuclear business and to implement the Indo U.S. Nuclear 123 Agreement in its true essence, the Act requires to be amended allowing patents for inventions solely related to atomic energy.

Footnotes

1 Section 4 of the Patents Act, 1970"

Inventions relating to atomic energy not patentable

No patent shall be granted in respect of an invention relating to atomic energy falling within sub-section (1) of Section 20 of the Atomic Energy Act, 1962.

2 Section 20(1) of the Atomic Energy Act, 1962:

As from the commencement of this Act, no patents shall be granted for inventions which in the opinion of the Central Government are useful for or relate to the production, control, use or disposal of atomic energy or the prospecting, mining, extraction, production, physical and chemical treatment, fabrication, enrichment, canning or use of any prescribed substance or radioactive substance or the ensuring of safety in atomic energy operations.

"radioactive substance" or "radioactive material" as defined under the Atomic Energy Act, 1962 means any substance or material which spontaneously emits radiation in excess of the levels prescribed by notification by the Central Government.

3 Section 39 of the Act

Residents not to apply for patents outside India without prior permission.

(1) No person resident in India shall, except under the authority of a written permit granted by or on behalf of the Controller, make or cause to be made any application outside India for the grant of a patent for an invention unless (a) an application for a patent for the same invention has been made in India, not less than six weeks before the application outside India; and (b) either no directions have been given under sub-section (1) of section 35 in relation to the application in India, or all such directions have been revoked.

(2) The Controller shall not grant written permission to any person to make any application outside India without the prior consent of the Central Government.

(3) This section shall not apply in relation to an invention for which an application for protection has first been filed in a country outside India by a person resident outside India.

4 Section 157A of the Act.  

Protection of Security of India

Not withstanding anything contain in this act, The Central Government shall -

    (a)     not disclose any information relating to any Patentable invention or any application relating to the grant of a patent under this act, which it considers prejudicial to the interest of security of India;

   (b)    take action including the revocation of any patent which it considers necessary in the interest of security of India;

Provided that the Central Government shall, before taking any action under this clause, issues a notification in the Official Gazette declaring its intention to take such action.

Explanation - For the purpose of this section, the expression "security of India" means any action necessary for the security of India which-

    (i)    relates to fissionable materials or the materials from which they are derived; or

    (ii)    relates to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; or

    (iii)    is taken in time of war or other emergency in matter of international relations:

© 2013, Vaish Associates, Advocates,
All rights reserved with Vaish Associates, Advocates, 10, Hailey Road, Flat No. 5-7, New Delhi-110001, India.

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

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Authors
Vijay Pal Dalmia, Partner
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