Section 4 of the Patents Act: The Jurisprudential Paradox of Absolute Exclusion and Innovation
- Kirti Sabharwal & Shubha Sharma
- Oct 3
- 7 min read
Section 4 of the Patents Act, 1970 (hereinafter referred to as ‘Act’), stands as a jurisprudential anomaly within India's intellectual property framework. While the exclusions under Section 3 have been the subject of extensive judicial interpretation, Section 4 imposes an absolute statutory bar on granting patents for inventions that relate to atomic energy.:
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[1]”
This categorical prohibition creates a framework in which the administrative determination by the Department of Atomic Energy (DAE) governs patentability without judicial oversight. However, this apparently absolute exclusion functions differently in practice: it operates through case-by-case assessment, allowing the Department of Atomic Energy (DAE) to obtain patents for related technologies while blocking private inventors from the same areas.
Statutory Framework
Section 4 works within a structured legal hierarchy, drawing its substantive content from Section 20[2] of the Atomic Energy Act, 1962. This foundational provision mandates that inventions related to the production, control, use, or disposal of atomic energy be disclosed to the Central Government. It thereby establishes the definitional framework that Section 4 enforces through the categorical exclusions of such inventions from patentability. The legislative intent behind this exclusion reflects the core policy objectives such as maintaining sovereign control over nuclear technology and preventing private appropriation of strategic innovations.
The scope of Section 20(1) of the Atomic Energy Act, 1962, extends to energy released from atomic nuclei through fission or fusion processes, the production and control of prescribed substances, and applications involving atomic reactors, nuclear fuel, or radioisotopes. A notification[3] issued by the DAE on April 28, 2016, enumerates various prescribed substances including zirconium, hafnium, and a wide range of radioisotopes. When these substances are present in a patent application, it typically triggers a referral under Section 4 of the Patents Act.
The procedural mechanism creates a unique administrative structure in which the Controller of Patents lacks independent authority to determine whether an invention relates to atomic energy.
Procedural Mechanism
1. The procedural mechanism begins with the standard patent application filing process at the Indian Patent Office (IPO). Every patent application undergoes initial processing, including screening and classification according to subject matter which may relate to atomic energy, as mandated under Section 4 of the Act and Section 20 of the Atomic Energy Act.
2. If an examiner suspects possible atomic energy relevance, the learned Controller is required to refer the application to the Department of Atomic Energy (DAE) for a specialized review under Section 20(6) of the Atomic Energy Act.
3. The DAE conducts a technical and security evaluation by analyzing the invention’s specifications, claims, and potential use. The DAE then issues a formal certificate stating whether the invention relates to atomic energy under Section 20(6) of the Atomic Energy Act.
4. The Controller is legally bound by the DAE's determination under Section 20(8) of the Atomic Energy Act. If it is certified as relating to atomic energy, the patent application must be refused under Section 4 of the Act and the applicant is accordingly notified. The DAE decision is not appealable.
5. Even after grant, if a patent is later found to relate to atomic energy, the government can direct its revocation under Section 65 of the Act.
Administrative Practice and Empirical Evidence
While Section 4 exclusions rarely appear in IPO decisions, official data shows below how the provision actually works.
According to the IPO Annual Report 2023–24[4], 134 applications referred to the DAE, 44 applications (32.8%) were certified as relating to atomic energy and were consequently excluded. Also, 80 applications (59.7%) were cleared to proceed under standard examination procedures, while the remaining were under review. This high clearance rate reflects administrative sophistication in distinguishing between core atomic technologies and adjacent or related applications.
Unlike conventional patent rejections, exclusion under Section 4 historically provided minimal reasoning, creating uncertainty for applicants. The Hon’ble Bombay High Court in ‘Ceres Intellectual Property Company Limited v. Controller of Patents, 2018[5]’ mandated reasoned orders for Section 4 rejections, introducing limited procedural due process requirements while maintaining the finality of DAE determinations. This judicial intervention represents the only significant procedural reform in the framework's five-decade history.
Thus, Section 4 enforcement operates within a deliberate regime of administrative secrecy, justified by national security considerations but unusual in a patent law context.
The DAE Patent Portfolio
Despite the restrictions under Section 4, Parliamentary disclosures reveal 234 Indian patents have been granted since 1985, and 139 foreign patents secured since 2001 through patenting of related technologies.
There are many specific achievements with respect to commercialization of patented technologies. The details of the significant achievements are listed below[6]:
Electronic Voting Machine – Patent No. 199087.
A Method for Treating Exhaust Gas Emission Produced During Combustion of Coal in a Coal Combustion Plant for Reducing Suspended Particulate Matters - Patent No. 194122.
An Improved Process for the Preparation of Magnetisable Cellulose Particle - Patent No. 193445.
Nanotube Incorporated Ballistic Resistant Armour Panels (BHABHA Kavach) and Products Thereof - Patent No. 528921.
An Apparatus to Generate Large Plasma Arc Plume for Waste Disposal and Thermal Processing Applications–Patent No. 432380.
A Liquid Nitrogen Based Portable Refrigeration System (SHIVAY) for Carrying Refrigerated Goods –Patent No. 502550.
Ultrafiltration Membrane Water Purification Device–Patent No. 195961
Process for Preparation of Anti-Leprosy Vaccine–Patent No. 153031.
A Penetration Enhancing Flux Formulation for Tungsten Inert Gas (TIG) Welding of Austenitic Stainless Steel and its Application–Patent No. 266346.
These patents span civic infrastructure, defence, healthcare, and environmental protection. They show that while core nuclear inventions are excluded, related technologies are actively patented and transferred.
Parliamentary records indicate widespread commercial use, validating the framework can drive innovation. Electronic Voting Machines are now integral to India’s electoral system, facilitating democratic participation for over 900 million eligible voters. Bhabha Kavach armour is deployed by Indian security forces; water purification devices operate in rural and disaster-hit areas; and refrigeration systems serve cold-chain logistics.
The development, patenting, and deployment of India’s Electronic Voting Machine system stands as the paradigmatic example of Section 4’s innovation potential Patent No. 199087, held by the DAE, represents one of the most successful technology transfers from atomic research to civilian infrastructure in Indian history.
The patenting of innovations originating from atomic research but serving civilian purposes without direct applications in atomic energy creates a nuanced boundary between prohibited and permissible subject matter.
Comparative Analysis: US and European Practice
Europe (EP)
The EP operates under a flexible, case-by-case approach without categorical exclusions. The European Patent Convention (EPC) contains no explicit exclusion regarding atomic energy inventions. Article 53(a) of EPC[7] provides that patents shall not be granted for inventions whose commercial exploitation would be “contrary to order public or morality” but the EPO interprets this narrowly, generally permitting nuclear technology patents unless they specifically relate to weapons or pose clear public safety risks.
Member states retain authority to impose national security restrictions, potentially delaying or suppressing publication, but this is handled through national law rather than blanket European Patent Office (EPO) policy. Applications refused by the EPO (including on national security or order public grounds) can be appealed internally to the Boards of Appeal.
United States of America (US)
The US operates under the Invention Secrecy Act of 1951[8] and 35 U.S.C. § 181[9], which permit the United States Patents and Trademarks Office to issue secrecy orders when an invention’s disclosure “might be detrimental to national security”. Most atomic energy inventions can be patented but may be subject to temporary secrecy if their disclosure poses security risks. These secrecy orders are temporary measures, typically lasting one year but renewable annually upon government request.
Absolute statutory exclusion applies under 42 U.S.C. § 2181[10], which prohibits patents for inventions “useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon”, i.e., military/weapon-specific uses only. This provision on atomic energy is narrower in scope because it targets only inventions with exclusive military utility. It specifically restricts patents only for inventions that are useful solely in atomic weapons, rather than all inventions related to atomic energy. Thus, the U.S. allows for patents on civilian atomic energy inventions, provided they do not pose national security risks or threaten public safety.
India’s distinctive approach combines permanent prohibition with administrative finality, showing specific policy choices that favour state control through broad exclusion while supporting related innovation through government institutions. This creates the most comprehensive statutory exclusion among major patent jurisdictions.
Tabular comparison highlighting the differences in jurisdictional practices:
| India | EP | US |
Legal Provisions | Section 4 of the Patents Act 1970; Section 20 of the Atomic Energy Act 1962 | Article 53(a) of the EPC (order public/morality); no explicit atomic energy exclusion | 35 U.S.C. § 181 (Invention Secrecy Act); 42 U.S.C. § 2181 (Atomic Energy Act) |
Scope of Exclusion | Absolute categorical exclusion for all inventions relating to atomic energy | No categorical exclusion; only weapons or clear public safety risks excluded | Absolute exclusion only for inventions “useful solely” in atomic weapons; civilian inventions patentable with security review |
Decision-Making Authority | DAE certification binding on Controller; no independent determination by Patent Office | EPO examines under standard criteria; member states may intervene for national security | USPTO conducts security screening; government agencies can impose secrecy orders |
Appeal | No appeal against DAE determination under Sections 20(6) and 20(8) Atomic Energy Act | EPO decisions appealable to Boards of Appeal; national security interventions vary by member state | Secrecy orders appealable to Secretary of Commerce; weapons exclusion not appealable |
Duration of Restrictions | Permanent and absolute exclusion | Case-by-case basis; indefinite if imposed by national authority | Secrecy orders: typically 1 year, renewable; weapons exclusion: permanent |
Conclusion
Section 4 of the Patents Act represents a distinctive jurisprudential construct that effectively balances absolute statutory prohibition with selective administrative application, aiming to achieve optimal outcomes for both national security and civilian welfare simultaneously. The apparent contradiction between provision’s broad exclusionary language and extensive state patenting activity is resolved when one recognises that the framework operates through deliberate policy designed to maintain government control over strategic technologies while simultaneously maximizing civilian benefits through controlled institutional channels.
The success of technologies such as the Electronic Voting Machine and Bhabha Kavach demonstrates that exclusion of private rights in strategic domains does not preclude innovation. Instead, it channels innovation through state institutions, balancing national security with societal benefit.
For practitioners, Section 4 demands careful assessment of whether inventions intersect with prescribed substances or nuclear applications. For policymakers, it underscores the challenges of maintaining absolute statutory exclusions amid converging and evolving technologies. India’s model remains distinctive among global jurisdictions, combining one of the most comprehensive statutory exclusion, coupled with one of the most innovative patent portfolios.
Kirti Sabharwal
Partner
Shubha Sharma
Senior Associate
References:
[6]https://cdnbbsr.s3waas.gov.in/s35b8e4fd39d9786228649a8a8bec4e008/uploads/2025/03/2025032456712461.pdf
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