Atomic Energy Inventions

1Section 4 of the Patents Act 1970 prohibits the grant of patents for inventions relating to atomic energy. The Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act 2025 (SHANTI Act) amends section 4 and allows patents on inventions for peaceful purposes. The SHANTI Act is yet to fully come into effect as no rules have been framed under that Act.

Section 4 before the SHANTI Act

2Section 4 prohibits the grant of patents for inventions relating to atomic energy. It is widely accepted that countries can provide for security exceptions for the protection of essential security interests relating to fissionable material. (TRIPS Agreement, art 73(b)(i).) Even if a patent is granted for an invention relating to atomic energy, the same may be revoked under s 65 of the Patents Act. The provision relating to atomic energy inventions are contained in s 20 of the Atomic Energy Act 1962, which reads as follows:

(1) 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.
(2) The prohibition under sub-section (1) shall also apply to any invention of the nature specified in that sub-section in respect of which an application for the grant of a patent has been made to the Controller of Patents and Designs appointed under the Indian Patents and Designs Act, 1911, before the commencement of this Act and is pending with him at such commencement.
(3) The Central Government shall have the power to inspect at any time any pending patent application and specification before its acceptance and if it considers that the invention relates to atomic energy, to issue directions to the Controller of Patents and Designs to refuse the application on that ground.
(4) Any person, who has made an invention which he has reason to believe relates to atomic energy, shall communicate to the Central Government the nature and description of the invention.
(5) Any person desiring to apply for a patent abroad for an invention relating to or which he has reason to believe relates to atomic energy shall obtain prior permission from the Central Government before making the application abroad or communicating the invention to any person abroad, unless three months have elapsed since his request for permission was made to the Central Government and no reply was received by him.
(6) The Controller of Patents and Designs shall have the power to refer any application to the Central Government for direction as to whether the invention is one relating to atomic energy and the direction given by the Central Government shall be final.
(7) Any invention in the field of atomic energy conceived whether in establishments controlled by the Central Government or under any contract, sub-contract, arrangement or other relationship with the Central Government shall be deemed to have been made or conceived by the Central Government, irrespective of whether such contract, subcontract, arrangement or other relationship involves financial participation of or assistance from the Central Government.
(8) Notwithstanding anything contained in the Indian Patents and Designs Act, 1911, the decision of the Central Government on points connected with or arising out of this section shall be final.

3‘Prescribed substance’ mentioned in s 20(1) of the Atomic Energy Act 1962 is defined under s 2(1)(g) of that Act to mean ‘any substance including any mineral which the Central Government may, by notification, prescribe, being a substance which in its opinion is or may be used for the production or use of atomic energy or research into matters connected therewith and includes uranium, plutonium, thorium, beryllium, deuterium or any of their respective derivatives or compounds or any other materials containing any of the aforesaid substances.’ A detailed list of prescribed substances is mentioned in the Schedule.

4Inventions relating to atomic energy cannot be a subject matter of patent under s 4 of the Patents Act. Section 20(1) of the Atomic Energy Act 1962 specifically excludes patents for atomic energy inventions. Under s 65 of the Patents Act, any patent granted for atomic energy inventions can be revoked at any time after the grant. Thus, an application for an invention concerning ‘imaging systems’ was refused after the Central Government expressed its opinion under s 20(6) of the Atomic Energy Act 1962, that the invention was not patentable. (Raytheon Company v Controller of Patents and Designs (1974) AIR 1974 Cal 336, p 339.) The invention pertained to an imaging system suitable for use with radiation characterised by the high energy particles, particularly high energy photons such as in gamma radiation.

5The Central Government may direct the Controller to revoke the patent if it is satisfied that an invention relates to an invention covered by s 20(1) of the Atomic Energy Act 1962. No patent 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. (Atomic Energy Act 1962, s 20(1).) Such direction given by the Central Government shall be final. (Ibid, s 20(6).)

6Generally, orders passed by the Controller may be appealed to the High Court. (Patents Act 1970, s 117A.) But there is no provision for appeal against a direction issued by the Central Government under s 65 of the Patents Act. Before the Patents (Amendment) Act 2002, appeals from a direction of the Central Government was governed by s 116(2) of the Patents Act, which did not include appeals from a direction issued under s 65, and consequently, the validity of a direction passed under s 20(6) of the Atomic Energy Act 1962 cannot be challenged in an appeal under the Patents Act. (Raytheon Company v Controller of Patents and Designs AIR 1974 Cal 336, pp 338-339.) The same position continues under s 117A(2) of the Patents Act. Similarly, the non-application of mind by the Central Government in passing a direction under s 20(6) of the Atomic Energy Act 1962 cannot be questioned in an appeal under the Patents Act. (Ibid.) The only remedy for an aggrieved person would be to invoke the writ jurisdiction of the high courts.

7In Raytheon Company v Controller of Patents and Designs (1974) the Calcutta High Court held of the Central Government’s communication that “in substance and for all practical purposes that was the direction” (para 4), and that “So long as the direction under Sub-section (6) stands, so far as the Controller of Patents and Designs is concerned he is bound to follow it and so far as the validity of that direction is concerned that is beyond challenge in an appeal under the Patents Act (para 4). The Court indirectly hinted that the remedy could be to file a writ petition rather than an appeal under the Patents Act. It said that “If the appellant is aggrieved by such direction or opinion or communication of the Central Government it is for the appellant to take such steps as he is entitled in law to challenge the propriety or the validity of the opinion or direction of the Central Government but this does not come within the purview of an appeal under the Patents Act, 1970. (para 4)

8In Ceres Intellectual Property Company v Controller of Patents, Trade Marks and Designs (2022) the Bombay High Court set aside a refusal where “the application has been rejected only on the ground that the directions are issued by the Department of Atomic Energy and in view of the said directions, the application is rejected.” (para 6) The Court held that “Reasons now are considered to be one of the limbs of the principles of natural justice” (para 5), and that “if the application of patent engulfs within its fold, the circumstances and/or inventions as detailed in Section 20(1) of the year 1962, the Authority has got powers to reject the patent application. However, the same is to be borne out from the reasons in the order.” (para 6)

9In Huntington Alloys v Union of India (2026) the Bombay High Court, relying on Ceres Intellectual Property Company v Controller of Patents, Trade Marks and Designs (2022), held that “when a person seek patent for his invention, according to us, he must be made aware of the reasons why his patent cannot be granted” (para 15), and that “if the reasons were furnished to the Petitioner, it was open for it to adopt the procedure under Section 65(2) of the Act of 1970 and the option of amending the specification was available to it.” (para 15) The Court set aside the refusal because “the order refusing the Patent Application is sans any reason” (para 17).

10Upon receipt of direction from the Central Government, the Controller may revoke the patent after giving notice and after giving an opportunity of being heard to the patentee and every other interested person. The Controller may, instead of revoking the patent, allow the patentee to amend the complete specification in such manner as he considers necessary.

11In Raytheon Company v Controller of Patents and Designs (1974) the Calcutta High Court held that “Section 65 of the Act cannot, in my opinion, have any application to the facts of this case. Section 65 is in Chapter XII of the Act dealing with surrender and revocation of Patents. Section 65 deals with the cases subsequent to the acceptance of the complete specification in accordance with Section 22 of the Act. That is not the case here.” (para 5)

12In Huntington Alloys v Union of India (2026) the Bombay High Court held, of section 65 as substituted in 2005, that “in no case, the provision can be construed to the effect that the patent application shall be granted first and then it shall be revoked, if it relate to atomic energy in the wake of the bar imposed under sub-section (1) of Section 20 of the Act of 1962.” (para 12) It held that “on consideration of application, it is permissible for the Central Government to issue direction to the Controller to refuse to proceed the same, if it relates to atomic energy, but to save such an application from its non-consideration on the said ground, it is open for the patentee/applicant to amend the specification, so as to avoid its invention involving atomic energy, resulting into its complete rejection.” (para 13)

Section 4 after the SHANTI Act

13With regard to the Patents Act 1970, s 89 of the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act 2025 provides that “The enactment specified in the Third Schedule is hereby amended to the extent and in the manner mentioned in the fourth column thereof.” The Third Schedule provides that for section 4, the following section shall be substituted, namely:–

4. Inventions relating to nuclear energy.––The patents may be granted for inventions relating to nuclear energy subject to the provisions of this Act and section 38 of the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act, 2025.

14The Third Schedule also amends section 65 of the Patents Act 1970 by replacing ‘sub-section (1) of section 20 of the Atomic Energy Act, 1962 (33 of 1962)’ with ‘section 38 of the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act, 2025’. Section 91(1) repeals the Atomic Energy Act, 1962. (SHANTI Act 2025, ss 89, 91(1) and Third Schedule.)

15The SHANTI Act makes an exception that was not there under the Atomic Energy Act. It allows for patents for inventions involving ‘peaceful uses of nuclear energy and radiation’. Section 38 of the SHANTI Act 2025 reads:

The Central Government may grant patents for inventions which in its opinion are for the peaceful uses of nuclear energy and radiation: Provided that the inventions relating to activities specified in sub-section (5) of section 3, or which in the opinion of the Central Government, are sensitive in nature or having national security implications, shall not be patentable and such invention shall be deemed to have been made or conceived by the Central Government. (SHANTI Act 2025, s 38(1).)

The mechanism for getting a patent still rests with applying for a patent under the Patents Act. It says that any person desirous of obtaining a patent in relation to an invention under this section shall make an application to the Controller under the Patents Act, 1970. (Ibid, s 38(2).) The call on whether the invention involves nuclear energy or radiation is that of the Controller. The SHANTI Act says that “If a question arises as to whether an invention is related to any of the activities specified in sub-section (5) of section 3 or is sensitive in nature or having national security implications, the Controller shall refer the application to the Central Government for seeking direction thereon.” (Ibid, s 38(3).) The Central Government also has the power to issue directions to the Controller in relation to any patent application under this Act. (Ibid, s 38(4).)

Excluded Activities under the SHANTI Act

16The activities in s 3(5) are those which “shall be set up or undertaken exclusively by the Central Government or any institution or factory wholly owned by it, namely:—

(a) the enrichment or isotopic separation of prescribed substance or radioactive substance, unless otherwise notified by the Central Government in this behalf; (b) the management of spent fuel, including reprocessing, recycling, separation of radionuclides contained therein and management of high-level radioactive waste arising thereof; (c) the production of heavy water and its upgradation by isotopic separation; (d) any other facilities or activities as may be notified by the Central Government. (SHANTI Act 2025, s 3(5).)

17The SHANTI Act casts the responsibility of disclosing the invention upon the inventor. Section 38 states that “Any person who has reason to believe that an invention made by him is related to nuclear energy shall communicate the Central Government of its nature and description before disclosing to any third party.” (SHANTI Act 2025, s 38(5).) The said Act state that any application for a patent outside India shall be governed by section 39 of the Patents Act, 1970. (Ibid, s 38(6).) Similar to the secrecy provisions under the Patents Act 1970, the Central Government can inspect “at any time any pending patent application and specification before its acceptance and if it considers that the invention does not relate to the activities referred to in sub-section (1), issue directions to the Controller to refuse the application on that ground.” (Ibid, s 38(7).)

18The SHANTI Act replaces the phrase ‘atomic energy’ which was used in the old regime with the phrase ’nuclear energy’. Section 2(22) provides that “’nuclear energy’ means energy released from atomic nuclei as a result of any process, including the fission and fusion processes; and any reference in this Act to the production or use of nuclear energy shall be construed as including a reference to the carrying out of any process, preparatory or subsequent or ancillary to such production or use.” (SHANTI Act 2025, s 2(22).) The explanation to section 2(22) states that the expression ‘atomic energy’ in any law or any other instrument having the force of law shall be construed as a reference to nuclear energy as defined in this clause”. (SHANTI Act 2025, s 2(22).) ‘Radiation’ is defined as “ionising radiation such as gamma rays, X-rays, and rays consisting of alpha particles, beta particles, neutrons, protons, positron and other nuclear and sub-atomic particles; but not sound or radio waves or microwaves, or visible, infra-red or ultra-violet light”. (Ibid, s 2(34).)

19In Huntington Alloys v Union of India (2026) the Bombay High Court recorded of the Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act, 2025 that “Under said enactment, the absolute embargo to consider grant of patent has been relaxed by making it permissible to encourage invention involving atomic energy for welfare purposes. However, we are informed that the said Act is not brought into force yet.” (para 14)