LAW RELATING TO PATENTING OF ATOMIC ENERGY IN INDIA
Keywords:
Energy, atomic energy, patent law, atomic energy lawAbstract
Energy is vital for growth of any nation and atomic energy is an option to secure the energy supply. Atomic technology is constantly evolving. It is argued that the technological innovations which are taking place in this area must be protected. To overcome with the risk of the stiffly the innovation and technological advances, it seems that there is need of reforms in the patent law relating to atomic energy. The Heading of Chapter II and Section 4 of the Patents Act, 1970 deal with “Inventions Non-Patentable” and “Inventions relating to atomic energy not patentable” respectively creates confusions. Section 65 of the Patents Act deals with the revocation of patent or amendment of complete specification on directions from Government in cases relating to atomic energy. To provide the development, control and use of atomic energy for the welfare of the people of India and for other peaceful purposes the Atomic Energy Act was enacted in the year 1962. Section 20 of the Atomic Act deals with the provision relating to inventions, and under the provision no patents shall be granted for inventions which in the opinion of the Central Government are useful for or relating to the safety in atomic energy operations. Although atomic energy is dangerous, much research and development is required in this field, because of its economic and environmental benefits. In India, within its legal framework, how to promote invention relating to atomic energy is an issue before the all stakeholders.
References
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4. Section 39 of the Act provides as under: (1) No person resident in India shall, except under the authority of a written permit sought in the manner prescribed and 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 direction has been given under sub-section (1) of section 35 in relation to JIPRL (2018) 1-7 © Law Journals 2018. All Rights Reserved Page 5 the application in India, or all such directions have been revoked. (2) The Controller shall dispose of every such application within such period as may be prescribed: (a) Provided that if the invention is relevant for defence purpose or atomic energy, the Controller shall not grant permit 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 by a person resident outside.
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6. Section 65 provides as under: (1) Where at any time after grant of a patent, the Central Government is satisfied that a patent is for an invention relating to atomic energy for which no patent can be granted under sub-section (1) of section 20 of the Atomic Energy Act, 1962, it may direct the Controller to revoke the patent, and thereupon the Controller, after giving, to the patentee and every other person whose name has been entered in the register as having an interest in the patent, and after giving them an opportunity of being heard, may revoke the patent. (2) In any proceedings under sub -section (1), the Controller may allow the patentee to amend the complete specification in such manner as he considers necessary instead of revoking the patent.
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13. Section 20 of Atomic Act provides as under: (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 JIPRL (2018) 1-7 © Law Journals 2018. All Rights Reserved Page 6 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. section (1) the Central Government may prohibit granting of any patent for inventions which it considers useful for or relate to the production, production, control, use or disposal of atomic energy or the prospecting, mining, extraction, pr oduction, 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. Sub Section (4) deals with 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. Under sub -section (5) if any invention has to be patented abroad, prior permission is required before making such application. This provision would raise a bar in cases of PCT applications for inventions pertaining to atomic energy covered by this section and designating India as one of the countries.1 Most importantly, by the virtue of Section 20(6) the Controller of Patents and Designs must refer any application relating to atomic energy to the Central Government whose decision in this regard shall be (6) The Controller of Patents and Designs shall have the power to refer any application to the Central Government for dir ection 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, sub -contract, 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.
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