Dr Bhabha had no difficulty in accepting the need for technology import. He said: “When a strong scientific and technological base has already been laid (as was done at the Trombay establishment), foreign collaboration can certainly lead to a quicker take-off.”But then he warned: “The relative roles of indigenous science and technology and foreign collaboration can be highlighted through an analogy. Indigenous science and technology plays the part of an engine in an aircraft, while foreign collaboration can play the part of a booster. A booster in the form of foreign collaboration can give an assisted take-off, but it will be incapable of independent flight unless it is powered by engines of its own. If Indian industry is to take-off and be capable of independent flight, it must be powered by science and technology based in this country.”

Elaborating the theme to a major sector such as steel, he said: “The steel industry has existed in India since the First World War, and one of the two steel plants was among the largest in the British Commonwealth in the early twenties — the construction and operation of a number of steel plants (as happened during the subsequent period) has not automatically generated the ability to design and build new plants. Unless powerful scientific and engineering groups are established during the construction and operation of existing steel plants as a matter of deliberate policy, the dependence on foreign technical assistance will continue and the steel industry will not reach a stage of technical self reliance. A similar situation exists in almost every other industry.”

The strategy worked out by Dr Bhabha for nuclear technology was thus based on his own celebrated “growing science” approach. A careful study of the strategy clearly brings out the fact that it had the following major elements:

* Evaluation of the technology gap in the field between India and advanced countries in all aspects, including the nature of IPRs related to it;

* Importation of appropriate technology wherever feasible and thereby utilizing the opportunity to get a quick ‘assisted take-off’;

* Systematic development of the appropriate indigenous science and technology (S&T) infrastructure to assimilate the ’know-how and know-why’ of designs, equipment and systems; and

* Providing adequate legal/administrative policy support for implementing the indigenous development program, including support measures to overcome issues connected to IPRs for which a calculated beginning had already been made through the Justice Rajagopal Ayyangar Committee Report (To quote the learned judge from his report, “The last matter I desire to mention is in respect to patents for inventions relating to Atomic Energy. At present the patentability of such inventions depends on the same tests as are applicable to inventions in other fields – viz. Whether it is a manner of new manufacture (Section 2(8) of Indian Patents & Designs Act,1911). The applications for those patents are however subject to the provisions of Section 12 of the Atomic Energy Act 1948, under which the Controller is directed to impose an order as to secrecy on the applicant restraining him from disclosing the invention to others until this ban is lifted by the Central government and not to proceed with the application beyond the stage of acceptance, so long as the secrecy direction is in force. As inventions in this field are sui generesis and required to be separately treated owing to their importance for national well-being, I consider it proper to deal with them comprehensively in an independent report confined to that topic. In view of the urgent need for Government taking a decision in relation to these inventions, I have submitted this already as an interim report in April 1959 and consequently the present report does not deal with any matter arising with reference to patents for inventions relating to Atomic Energy”). This task was later fulfilled through the Atomic Energy Act, 1962, according to which all items (materials, systems, etc.) covered under the said Act were made non-patentable.

4.    As part of such the integrated “Growing Science” S&T strategy, the department of atomic energy (DAE) undertook the following tasks. Establishment of the Trombay nuclear reactor as the main R&D center, to be followed by others dealing with the differing aspects of the nuclear program, construction and operation of CIRUS research reactor at Trombay and the CANDU Power Reactor at Rajasthan based on technology import from Canada, enactment of the Atomic Energy Act, 1962 , defining the nature and scope of nuclear science and technology in our country and making all items covered under the Act non-patentable and introducing the same provision as Clause 4 in the Indian Patents Act, 1970, and thereby providing adequate legal protection for all S&T programs related to systematic indigenisation and innovation wherever required.

Thanks to such a farsighted strategy, DAE was able to execute its task with great success, in spite of many a major set-backs not unusual in assimilating such an ‘unforgiving technology’, to use the description of the veteran nuclear technologist Alfred Weinberg, and also notwithstanding even the most rigorous international non-trade barriers such as embargoes of large number of items including those belonging to the so-called ‘dual use’ category from the advanced countries. Currently its Nuclear Power Corporation has established a total capacity of 3310Mwe,  and seven more reactors are under construction to take the total capacity to 6730 MWe, supplying the clean energy to the various grids in the country at rates comparable to those from thermal sources and with plant load factors comparable to those by international nuclear power utilities. The recent commissioning of the 540 MWe capacity Tarapur Units 3&4 has truly added another significant feather to its cap as the test of the consummation of the decades long accumulated expertise and capabilities in the field – the very dream itself of its founding father coming true in flying colours!

It is based on the above solid foundation including over 200 reactor years of safe nuclear power plant operation, with its Unit at Kakrapra getting even the prestigious WANO Award, that DAE has now planned to establish an installed capacity of 20,000MWe by the year 2020, with reasonable prospects for also the raw material uranium in the new locations in Meghalaya, AP, Jharkhand, MP and Rajasthan. In summary, DAE has gone a long way indeed to fructify the ambition of its founding father Dr Homi Bhabha to make India a truly self-reliant leader in nuclear technology among the comity of developed nations.

5.    These programs have, as of now, been planned based on the continued validity of all IP related safety clauses as envisaged in the 1962 Atomic Energy Act and also incorporated even in the final amended Patents Act,2005 – all items covered under the said  Act being non-patentable. Even though this is generally the situation, it must be noted that over the years, new challenges have arisen specifically in the areas of dual-use systems/materials and also for those under embargo even in spite of such an overriding protective umbrella. Thus,

            (a)The Atomic Energy Act , 1962 was enacted “ to provide for the development , control and use of atomic energy for the welfare of the people of India and for other peaceful purposes and for matters connected therewith” , taking into account the then prevalent status w.r.t. the indigenous S&T capabilities in the defined area. The Act provided powers to the central government, as defined in the relevant sections of the Act, to deal with all aspects related to production and use of “ prescribed equipments” as defined in Section 2(f), of  “ prescribed substances” as defined in Section 2 (g) and patents and patenting as defined in Section 20(1) and subsequently included as clause 4 of the Indian Patents Act, 1970.

             (b)Making use of the relevant clauses of The 1962 Act and the Patents Act 1970, the Department of Atomic Energy has been able to achieve adequate success in indigenous development of nuclear science and technology in its manifold aspects as well as adequate conservation of these valuable resources from unplanned overuse.

             (c) Meanwhile the non-nuclear applications of some of the “prescribed” substances have grown in the country both in terms of R&D and commercial production by non-DAE agencies and more of such cases are anticipated in the not too distant future. Titanium, rare earths, radio-pharmaceuticals, nuclear agriculture, etc are some cases in point. It is thus only appropriate that the relevant clauses of the Acts are reviewed in totality such that suitable corrections/modifications are made in these provisions of the Acts taking into account not only the field of nuclear science and technology but also the non-nuclear sectors within the overall interest of continued national development.

             (d)The scope of the “ prescribed plants and substances” can be broadly separated into two categories.

                        A. Those like uranium, plutonium , thorium , heavy water, etc belonging to the core nuclear cycle operations and the use of which are very limited , even nil , in all other non-nuclear spheres of technology , and

                        B. Those like zirconium, hafnium, rare earths, beryllium, lithium, niobium, tantalum, titanium, graphite, radioactive isotopes, etc which are used in nuclear technology but are of equal, at times even greater utility, in other branches of technology.

Such a re-classification of “ prescribed substances” has become meaningful in India also, thanks to meaningful development of sectoral demands for these products e.g. titanium minerals and titanium in heavy chemical and other civilian industry, zircon and zirconium in refractory/metallurgical fields, rare earths in chemical/electronics sector, beryllium in electrical/electronics sector, and so on. Further, the use of radioactive substances have become widely prevalent in agriculture and land use management, food preservation, radio-pharmaceuticals, and so on. Whereas those in (A) would continue to be reserved for the government sector, others need/may not be so during the years to come.

Taking into account the above aspects, the following suggestions may have to be taken up to amend the Atomic Energy Act 1962 and the Clause 4 of Indian Patents Act 1970 as follows.

                        A. The word “ prescribed substance ” in the Atomic Energy Act 1962 may be re-defined as “ 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 IN THE CORE NUCLEAR CYCLE for the production or use of atomic energy or research into matters connected therewith and for which there is only insignificant demand in other sectors of technology ( typically uranium , thorium, plutonium and such actinides and well-identified nuclear materials such as heavy water ) , or any of their respective derivatives or compounds or any other materials containing any of the aforesaid substances “ and     “prescribed plants and equipments” as defined in 1(e) and  1(f) respectively of the 1962 Act and Clause 4 of Indian Patents Act 1970 as applicable to “ prescribed substances” as defined herein.

                        B. For all other items (substances, plants and equipments) covered under the 1962 Act, the central government shall reserve its powers for protection of IPR’s under the provisions of “ its own use “ as provided in the 1970 Patents Act when required for nuclear purposes.

In other words, 7(A) would continue to provide protection as envisaged in the 1962 Act for all prescribed substances, plants and equipments belonging to the CORE NUCLEAR CYCLE and 7(B) would vest with the DAE adequate powers to utilize the S&T results through the relevant clauses in the Patents Act for items such as rare earths, titanium, radioactive substances etc if so required by the DAE in its nuclear activities even when these activities may be thrown open to non-DAE/private sector agencies in the interests of larger national development.

In summary, under the TRIPS dictated New IPR Regime, there is a need to amend the 1962 Act to make them more relevant in contemporary context.

            The other major area of concern is that many dual-use items are subjected to international embargo. At the same time, the latest Patents Act permits patentability of such items. In other words, such items are “twice barred” from our national use, both through import and through indigenisation so essential in such cases. The possibility of subjecting such items to Compulsory Licensing under anti-competitive practice is quite cumbersome and will not serve to have the same in time. Efforts must be made to incorporate a clause in Patents Act to the effect “Any item under embargo will automatically cease to attract patent validity”.

In summary, while the DAE’s own development plan must be pursued with maximum vigour, the necessary amendments must be made in the 1962 Act and Patents Act to implement the program without the new TRIPS dictated legal obstacles and without creating IP related issues to those covered under the 1962 Act but which have over decades found immense uses in many other sectors of industry.

5. It is in the midst of such a milieu that the Union government has recently reviewed the role of nuclear power in ensuring India’s energy security, according to the statements of the Prime Minister, based on which the government seems to be now contemplating to expand as expeditiously as possible her nuclear power capacity by 20-30,000 MWe under the recently concluded Indo US Agreement in civil nuclear technology. The capacity creation will obviously be through import of the reactors, fuel assemblies and spares and accessories and all other items usually relevant to technology transfer programs. The main reasons for going for such an expansion program are the following:

(b)   To quote the PM again, “We have assessed our long term energy resources and it is clear that nuclear power has to play an increasing role in our electricity generation plans. While our indigenous nuclear power program based on domestic resources and national technological capabilities would continue to grow, there is clearly an urgent necessity for us to enhance nuclear power production rapidly. Our desire is to attain energy security to enable us to leapfrog stages of economic development obtained at the least possible cost.  For this purpose, it would be very useful if we can access nuclear fuel as well as nuclear reactors from the international market.