1,2,3,4: The 123 Indo-U.S. Civil Nuclear deal and Section 4 of the Patent Act

The current UPA government had recently staked it survival on the Indo-U.S. Civil Nuclear 123 Agreement. As of now since India is not a signatory to the NPT it is an untouchable in the world of nuclear commerce. However with this new agreement India hopes to end this period of nuclear apartheid by obtaining a waiver from the Nuclear Suppliers Group. Once Indian doors are open for nuclear commerce it is estimated that India will be importing billions of dollar worth of civilian nuclear technology. However antiquated provisions in the Indian Patent Act may make this already bumpy ride a bit more uncomfortable. This is because Section 4 of the Patent Act does not allow for patenting of inventions related to atomic energy. I reproduce the section below:

Section 4: 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 (33 of 1962).

This section was the result of an interim report submitted by Justice Ayyangar in April 1959 just months before he submitted a more comprehensive report which formed the basis of the Patent Act passed in 1970. Unfortunately I do not have access to this interim report and hence will have to make a couple of calculated guesses as to the reasons for this provision. The most obvious reason for this provision seems to be the fact that atomic energy was deemed to be of such strategic importance in the 50’s that it would be against national interests to grant patents to private parties for such technologies.

The Indian approach wasn’t all that different from those of the U.S.A. or the U.K. Alex Wellerstein, a 26-year-old history of science graduate student at Harvard University in an interesting paper titled ‘Patenting the bomb: Nuclear weapons, intellectual property and technological control’ outlines the history of patenting of atomic energy related inventions in the U.S.A. Turns out that the U.S. Government had actually secretly patented the atomic bomb in the 40’s. Alex argues that although patenting the bomb may seem ridiculous today it was the only way the U.S. Government could secure for itself complete legal and monopolistic control over the nuclear technology in the absence of any regulation of the technology what so ever in the immediate aftermath of the Manhattan Project. Some wise men have (quite humorously) speculated that the reason for patenting the atomic bomb was because the U.S. Government wanted to use the patents as a tool of non-proliferation by threatening to airdrop patent attorneys over countries that were building the bombs in order to sue them for patent infringement! At that time the U.S. Government had invoked a provision of law which enabled them to keep certain these patent applications secret releasing them only in the 50s. As of now Alex Wellerstein provides on his website links to several of these patent applications on the USPTO website. (As an aside – while I’m no nuclear scientist or terrorist: isn’t it dangerous to put on the internet designs for components of nuclear bombs? And to think poor Dr. Khan has been under house arrest for proliferation of nuclear technology.) In 1946 the U.S.A. passed the Act for Development and Control of Atomic Energy which deemed inventions related solely to atomic weapons as unpatentable subject matter. This position of law has not changed till date. The Atomic Energy Act continues to bar patents for inventions related solely to atomic weapons. Patents for other inventions related to atomic invention maybe granted after scrutiny by the Department of Atomic Energy. (That’s right – not everything under the Sun in patentable even in the U.S.A.). The U.K. Law: As of now under Section 22 (6) of the Patents Act, 1977 the Secretary of State is required to refer patent applications for atomic inventions to the appropriate authorities in order to determine whether the publication of that patent is detrimental to national security or public interest. There however is no explicit bar against patents for inventions related to atomic energy or weapons in English law as of now. Even the Atomic Energy Act, 1946 has only one provision related to patents which basically allows the Government to use any patented inventions related to atomic energy.

Indian law as of now makes no distinction between atomic weapons and atomic energy. While disallowing patents for the first category is understandable it does not make sense to not allow for patents for inventions relating to atomic energy especially when we are on the cusp of entering the global nuclear commerce. Foreign companies would be jittery transferring their nuclear technology to India if they are not assured of adequate intellectual property rights protection. This assertion is especially significant in the light of the Indian companies looking forward to forming JVs with foreign companies seeking to invest in nuclear power plants in India. Technology transfer to private players in the lack of a stable IPR regime is highly unlikely. Indian companies are already lobbying hard with the Indian Government to amend the Atomic Energy Act so as to allow for private participation in nuclear power plants. If they are indeed serious about getting into the nuclear business they must appraise the government of the need to amend even the Patent Act by amending Section 4 to disallow patents only for inventions solely related to atomic weapons. However since the Opposition was not successful in stopping the 123 agreement they will definitely try to stall the amendment of S.4 of the Patent Act in a bid to complicate matters.