Publications


AGRANI Satellite Project  &  ISRO Satellite Programs – An IPR Study. 
Dr. A. D. Damodaran
1.            The Rs 1,160 crores satellite project of Agrani  Satellite Services Ltd (ASSL) is reported  to be still awaiting financial closure as well as US presidential waiver on import of satellite components.  Recent reports indicate that the government of India has cleared the proposal with 74% foreign equity. This is a project promoted as a subsidiary of ASC Enterprises Ltd (ASCEL), so far as the only Indian private initiative to send a satellite into orbit.There are reports that other majors such as Mittals and Reliance are also having plans to enter the area.  The satellite sector obviously seems to be undergoing major structural changes in our country , may be as part of the new globalization strategy of the government.

2             Among the possible foreign partners, ASSL has reportedly again chosen Alcatel Space Industries for the satellite and Arianspace for the launch contract. The running cost is expected to be low. The satellite with 24 C band transponders and 14 Ku band transponders, considerable revenue is expected by transponder capacity leasing. Currently India uses 135 transponders of which 65 are leased.

3.            This falls well within the strategic perspective projected by the ASSL officials for satellite communication sector in the liberalized regime. In a projection by its CEO Mr J.P.Singh before a conference in the National Institute of Advanced Studies, Bangalore entitled " Indian Space Programme : Survival in the New Millenium", the following points had been highlighted:
 
 

a. As viewed by a former insider from outside.
b. Entirely government funded , nation's pride, now under pressure and facing limits to growth.
c. Selective sciences, Applications & Access thrusts - Some innovative, some "me too".
d. Strategic- guarding against denials and access.
e. Spin- offs, "can do" attitude.
f. Beginning to lag in vital areas.
g. Issues of sustained competitiveness.
h. Changing global scene - Convergence of Telecommunications, Information, Media and Entertainment (TIME), Mass markets ( $35Bn in 1998 to go up to $171Bn in 2008) and yet customization and localization , focus on service sector and vast commercial opportunities ; co-existing also with guarding and protection of high technologies giving rise to sophisticated "protectionist  barriers".
i. Future "slow death" without timely proactive restructuring actions - Avoidance of the same through appropriate government policy with necessary legal and regulatory framework, level playing field for all agencies including initiatives from the private sector, in summary a strategy taking into account user/consumer interests and strategic + industrial/trade considerations. 
j. To graph a piece of global market place through alliances and partnerships - need to keep hold on "strategically critical" core and yet focus selectivity as part of the global space industry.
 
4.            Taking into account the emerging complexities of space activities by the eighties, the government policy on space sector was resolved by the US in the following way :
 
a. Development and operation of commercial launchers regulated/ controlled by the Ministry of Transport.

b. Design and Development of strategic systems  handled by the Ministry of Defense.

c. NASA with its assigned role in carrying out advanced and  futuristic R&D in space sciences.


Strategic technologies were subjected to "protection barriers" also through the Commerce department when applied to export .Hopefully India  also is in the process working out a suitable governmental structure and strategy to handle the 'new millenium' problems for the space sector. This article concentrates only on the possible IPR related issues arising out of the first part of the new space policy, namely, opening up the sector to private agencies with even majority FDI shares.

5.            It is known to one and all that all inventions related to technologies for launch vehicles and satellites are heavily patented by the concerned assignees of rights, bulk of whom belonging to the OECD countries and in turn having strongly protected IPR regimes. As per the existing 1970 Indian Patents Act , items covered under the space research umbrella are patentable  and hence the reason that the Indian patents data base describes such cases among its approved items, though so far only in limited number. All the same, the Indian Space Research Organization  could utilize any patent for its use since, those uses were classified as government's "own use"  and the 1970 Act gave adequate unilateral powers to ISRO to do so without attracting infringement charges.

6.            Under the TRIPS-compliant New IPR Regime ( this will be in place once the Second Amendment Bill , currently before the parliament, is passed .) ISRO will not be having such unilateral powers and instead will have to go through certain well defined legal/judicial/administrative procedures to utilize any valid patent not belonging to ISRO.The matter would becomes more complex once the conditionalities of GATS also become effective , more so as applied to patents valid in other countries.  So also if there are competing agencies within the country, including those in private sector in technical collaboration arrangements with their foreign counterparts.

7.            Coming to the proposed specific case of ASSCL - Alcatel  joint project, a few of the following points may be noted :

a.              Even a quick survey through the website  WWW.USPTO.GOV indicates that Alcatel has been protecting its technologies through over 3000 patents granted in US itself.Under the key-word "satellite" , Alcatel owns around 40 US patents, some of the latest ones being :
 
 

US 6,098,931 Satellite with improved heat sinkage.
US 6,241,193 Geostationary satellite stabilised along three axes with improved temperature control.
US 5,777,577 Satellite selection.

Once the joint collaboration agreement is granted, the relevant IPR protection measures will be regulated only by the New IPR Regime. In other words, all R&D activities of ISRO will at least(?) hence forth have to be regulated accordingly. Such a sudden change over is certainly not expected to be easy , as is seen by the panic witnessed among the Indian drug companies.

8.            Added to these developments are reports that the Department of Atomic Energy is seeking civilian participation in its nuclear power generation programs , with Russia willing to supply nuclear fuels for even our Rajasthan  power reactors, leave alone the massive collaboration between DAE and the Russians for  the ones for Koodamkulam, Tamil Nadu.. Even major defense sector PSUs such as Hindusthan  Aeronautics Ltd  has corporate plans contemplating to grow as an internationally competitive aerospace industry. In other words, India seems to be on the verge of opening up her satellite, defense and nuclear power sectors to the civilian/private sectors with even majority FDI participation, though earlier they were exclusively reserved  under the government’s “own use” category. It is hoped that while opening up these sectors within the New Economic Policy framework , the authorities are well aware of the larger dimensions of such policy changes.