I. Introduction

For over six decades, Section 4 of the Patents Act, 1970 imposed an absolute bar on nuclear patents in India.^[1], The Sustainable Harnessing and Advancement of Nuclear Energy for Transforming India Act, 2025 (the “SHANTI Act”), which received Presidential Assent on December 20, 2025, dismantles this prohibition, replacing it with conditional patentability subject to national security screening under Section 38, and aligning India with established nuclear IP models in the US, EU, and UK.^[2] The reform is driven by India’s target of 100 GW of nuclear capacity by 2047 and the need to attract private capital and international technology partnerships.^[3]

II. Legislative Transformation and Section 38

The SHANTI Act substitutes Section 4 of the Patents Act to permit patents for nuclear inventions “subject to the provisions of this Act and Section 38.”^[4] The result is a two-tier framework: government monopoly over strategic fuel-cycle activities (uranium enrichment, reprocessing, heavy water production, strategic materials) and regulated private participation in civilian applications.^[5]

Section 38 is the central patent gateway, permitting patents for peaceful uses of nuclear energy and radiation while excluding proliferation-sensitive activities. The Controller of Patents may refer applications for government security determination; if deemed sensitive, ownership vests with the government.^[6] The statute, however, does not define “sensitivity”, processing timelines, or inventor compensation on security-based rejection^[7]—gaps that will require regulatory clarification and are likely to generate early litigation.

III. New Patentable Technology Areas

The following civilian technology categories, previously barred, are now open to patent protection under the SHANTI Act:^[8]

• Small Modular Reactor (SMR) designs and systems
• Radiation therapy equipment and nuclear medical imaging
• Radiation sterilization for medical and pharmaceutical use
• Industrial radiography and materials inspection
• AI/ML applications for reactor safety monitoring
• Robotics for nuclear waste handling and decommissioning
• Advanced radiation shielding materials
• Nuclear desalination and water treatment systems

Section 9 further permits individuals, universities, and private enterprises to undertake nuclear R&D without a licence (subject to safety compliance),^[9] creating a statutory basis for university-industry IP collaboration and technology transfer previously foreclosed. Practitioners must note two prosecution constraints: (i) pre-disclosure notification obligations under Section 38 apply before academic publication or investor disclosure;^[10] and (ii) the foreign filing licence under Section 39 of the Patents Act may trigger additional security review for dual-use technologies, constraining Patent Cooperation Treaty (PCT) timing and international portfolio development.^[11]

IV. TRIPS Compliance

The SHANTI Act materially improves India’s compliance with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Under TRIPS Article 27, WTO members are required to make patents available for inventions in all fields of technology. Exclusions are permitted only on narrow grounds, principally where preventing commercial use is necessary to protect public order, public health, or national security. India’s former blanket ban on all nuclear patents was difficult to justify within these narrow limits and exposed India to potential challenge under the WTO dispute settlement mechanism.^[12]

The SHANTI Act resolves this tension through a calibrated approach. By permitting patents for peaceful civilian nuclear applications, India now fulfils its core Article 27 obligation to protect innovation across technology fields. At the same time, exclusions for strategic and proliferation-sensitive activities are legitimately preserved under Article 73, which expressly permits members to take measures necessary for the protection of essential security interests. The SHANTI Act’s objectives, balancing IP incentives with public interest, also align with the principles in TRIPS Articles 7 and 8, which recognize that IP protection must contribute to technological innovation and the transfer of technology in a manner conducive to social and economic welfare.

V. Ongoing Constitutional Challenge

The SHANTI Act faces a constitutional challenge in EAS Sarma v. Union of India^[13] before the Supreme Court, filed under Article 32 of the Indian Constitution. The petition challenges the statutory cap on operator liability (₹3,000 crore) and removal of supplier liability as violative of Articles 14, 19, and 21 of the Indian Constitution, invoking the absolute liability doctrine from M.C. Mehta v. Union of India.^[14] Regulatory independence of the Atomic Energy Regulatory Board is also questioned. A bench of Hon’ble CJI Surya Kant and Justice Joymalya Bagchi has acknowledged the constitutional sensitivity of the issues.^[15] Any ruling on the SHANTI Act’s validity will bear directly on the stability of the Section 38 patent regime.^[16]

VI. Commercial and Business Implications

The reform is expected to drive the following commercial and IP activity:

• Technology licensing agreements with international nuclear companies
• University and research institution tech transfer through patents
• International joint ventures in SMR and reactor development
• Domestic manufacturing ecosystems for nuclear equipment
• Venture capital and private equity investment in nuclear startups

Practitioners must also note that compulsory licensing under Sections 100 and 101 of the Patents Act remains available: the government may authorize use of patented nuclear inventions with administratively determined compensation,^[17] a power likely to be invoked for safety testing, regulatory approval, or emergency deployment, and one that must be factored into licensing valuations. Government customs duty exemptions on nuclear equipment imports until 2035 further signal sustained sectoral commitment.^[18]

VII. Conclusion

The SHANTI Act, 2025 marks India’s entry into the global nuclear IP ecosystem, replacing a six-decade absolute prohibition with a conditional patentability framework aligned with international practice. Nuclear patent work now demands cross-disciplinary expertise across patent prosecution, atomic energy regulation, export controls, and constitutional law. The framework’s final shape will be dependent on implementing rules, sensitivity determination precedents, and the resolution of pending Public Interest Litigation.

[1] Patents Act, 1970 (Act No. 39 of 1970), Section 4 (as amended by the SHANTI Act, 2025).

[2] Press Information Bureau, Government of India. https://www.pib.gov.in/PressReleasePage.aspx?PRID=2219510&reg=3&lang=1

[3] Indo-US Civil Nuclear Agreement, 2008; Civil Liability for Nuclear Damage Act, 2010

[4] The Third Schedule, SHANTI Act, 2025 (Act No. 39 of 2025), amending Section 4 of the Patents Act, 1970.

[5] SHANTI Act, 2025, Sections 3–8 (licensing and participation framework).

[6] SHANTI Act, 2025, Section 38 (Patent Protection for Nuclear Inventions).

[7] SHANTI Act, 2025, Section 38; Rules under Atomic Energy Act pertaining to sensitivity determination and government vesting.

[8] SHANTI Act, 2025, Section 9 (Research and Development Exemption).

[9] SHANTI Act, 2025, Section 38.

[10] Patents Act, 1970, Section 39 (Foreign Filing Licence); SHANTI Act, 2025, Section 40 (coordination with national security authorities).

[11] 35 U.S.C. §§ 181–188 (Patent Secrecy); Atomic Energy Act of 1954, 42 U.S.C. § 2181.

[12] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Article 27 (Patentable Subject Matter) and TRIPS, Article 73 (Security Exceptions); Articles 7 and 8 (Objectives and Principles).

[13] EAS Sarma v. Union of India, Writ Petition (Civil) No. 240 of 2026, Supreme Court of India.

[14] M.C. Mehta v. Union of India, 1987 AIR 1086.

[15] SHANTI Act, 2025, Sections 3–8 (Private Participation and Licensing Framework); Schedule I (Permitted Activities).

[16] LawBeat https://lawbeat.in/top-stories/shanti-act-2025-plea-before-supreme-court-challenges-nuclear-energy-law-provisions-on-supplier-liability-1568822

[17] Patents Act, 1970, Sections 100 (Central Government use of patents) and 101 (Authority to use patented inventions).

[18] Press Information Bureau, Government of India. https://www.pib.gov.in/PressReleasePage.aspx?PRID=2099244&reg=3&lang=2