Patent

Sexual Pleasure is Immoral: So Says the Indian Patent Office!


Don’t believe me? Read this decision where a patent claiming a sexually stimulating device (a unique vibrator) was denied on the ground that it was an “immoral” invention under section 3(b) of the Patents Act.

In this case, the applicant, Standard Innovation Corporation (a Canadian entity) claimed a creative vibrator, branded now as “We-Vibe”. Unlike other vibrators, this does not really look like a vibrator, but is a rather interesting U-shaped device: sort of like a pair of headphones! Better still, this innovative apparatus offers dual stimulation to a woman in that it stimulates the G-spot and the clitoris; and can be used during regular sexual intercourse. As advertised on the applicant’s website:

“She wears it during sex for extra stimulation to her clitoris and G-spot and together you both share the vibe.”

For more background, see this review which states:

“When most of us think of the word “vibrator”, we think of women and masturbation—solo masturbation. And for a very long time, that was a fairly accurate picture of a vibrator’s only purpose. But then, a company named Standard Innovations introduced the original We-Vibe—they called it a “couple’s vibrator” and it was designed to essentially be worn on the woman’s vulva during sex. Suddenly, vibrators seemed to have a lot more potential in the bedroom.”

Indeed, this product has become so popular that it occupies a pride of place in gift kitties handed out to celebrities that turn up for the Oscars.

Patent Claim:

And now to the technicalities of this allegedly pornographic patent. Claim 1 of the patent (filed in several countries including India) reads as below:

“A sexual stimulation device comprising:

  • an inner arm dimensioned for insertion into a vagina;
  • an outer arm dimensioned to contact the clitoral area when said inner arm is inserted in the vagina; and
  • a flexible connecting portion connecting the inner and outer arms,

characterised in that said device is dimensioned to be worn by a female during intercourse, and said connecting portion is narrow to permit sexual intercourse when said inner arm is inserted in the vagina.”

To paraphrase this in simpler language, let me draw from an ITC complaint filed by Standard Innovation against its main competitor, Lelo.

“The patent is directed to a sexual stimulation device worn by a woman during intercourse that includes an arm dimensioned for placement inside a vagina and an arm dimensioned for placement against a clitoral area. The arms taper down toward a connecting portion that connects the two arms, and at least one of the arms has a tear-drop shape.”

Unfortunately, the Patent Office (speaking through an Assistant Controller in April last year) wasn’t pleased…or “stimulated” as the case maybe. Rejecting the patent, it held as below:

“The subject matter claimed in the instant application relates to “sexual stimulating vibrator” and its intended use or commercial exploitation could be contrary to “public order” or “morality” and falls under section 3(b) of the Patents Act (as amended) and is not allowable…. Mostly these are considered to be morally degrading by the law.”

The decision contains some knotty nuggets on Sex and the Law; with the patent office pontificating on why “sexual pleasure” is morally abhorrent and how sex toys are obscene objects. But best of all is the finding that these toys are “useless” and “unproductive”! Anyway, here goes:

Law vs Sexual Pleasure

  1. “The law views sex toys negatively and has never engaged positively with the notion of sexual pleasure.”

There you have it. The law is apparently at odds with “sexual pleasure”! So when you engage in the productive enterprise of procreating, focus just on reproducing. And don’t derive any pleasure whatsoever. Tis the age of austerity! Forget the fact that we are also the land of Kamasutra. As the famous comedian Papa CJ once quipped: “I’m from the land of Kamasutra. I can f%%^ you in more ways than you can ever imagine.” Speaking of the Kamasutra, did you know that sex toys find a mention in this grand cultural treatise of ours?

Useless Sex Toys?

  1. “These are toys that are not considered useful or productive.”

For those that thrive on sex toys, this must come as a rude shock! The ITC complaint (that I’d mentioned earlier) spells out the many splendoured uses for this devilish device.

“Such devices are useful in a number of contexts, including improving relationships, increasing pleasure for a partner, sexual-disorder treatment, promoting monogamy and marital stability thereby reducing transmission of sexually-transmitted diseases, and increasing satisfaction of sex life of an individual and thereby contributing to an overall wellness/productivity gain for the individual.”

Perhaps by “productive”, the Patent Office meant the ability to actually “produce” children: the main point of sex according to Section 377 of our criminal code, a highly problematic provision that was independently invoked by the patent office as below.

Section 377 and Unnatural Sex

  1. “Article 377 bans any sort of sexual intercourse that is termed to be unnatural biologically. Therefore sex toys (sexual stimulation device), also known as adult toys are banned on the premises that they lead to obscenity and moral deprivation of individuals.”

Section 377 appears to be the flavour of the season…with a renewed challenge against its constitutional validity at the Supreme Court. At its core, it criminalises any sexual activity that is allegedly against the “order of nature”, including homosexuality. And indeed any other form of intercourse outside of procreative sex, perhaps even condom usage, as I’ve argued in an earlier paper.

Problematic as this provision is, its invocation here is tad bit surprising though, since the section is very specific in its application to only certain “subjects”:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with…”

As can be seen, the section applies only if there is a “person” (whoever) at one end who engages in “unnatural” sex with another person (man/woman) or animal.  Clearly, a vibrator is outside the scope, for it is neither a person (at least not yet) nor an animal.

Unless of course the argument is that the use of this vibrator during the course of regular procreative sex renders the sex itself between two consenting adults “unnatural”!

Sex Toys as Obscene Objects?

  1. Importing and selling sex toys, considered as an ‘obscene’ object and hence illegal in India. Under Section 292 of the Indian Penal Code which defines the term ‘obscene’ and provides for punishment for distributing any such object. Section 292 (1) defines ‘obscene’ as follows: “a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest….”.

Here again, at least one court has made it clear that sex toys are not necessarily “obscene”. In Kavita Phumbra v. Commissioner of Customs (Port), Calcutta, the Calcutta High Court held as below:

“In our opinion, an article or instruction suggesting various modes for stimulating the enjoyment of sex, if not expressed in any lurid or filthy language, cannot be branded as obscene. Acquisition of knowledge for enjoyment of sex through various means is not by itself a prohibited activity, provided it is not done through obscene language or pictures. The concerned items are meant for adults and as such their importation for restricted sale to adults only should not be considered to be on the wrong side of the law.”

In the case at hand, the device does not even look like a vibrator. Fairly innocuous, as I mentioned earlier (almost like headphones) and far from obscene (at least in terms of its visual appeal). How then can it qualify as obscene under the logic of the above ruling? Further from a constitutional law perspective, any potential ban on goods has to be balanced against the fundamental right to free speech (under Article 19(1)(a) and the right to trade under Article 19(1)(g). For an insightful discussion around the legality of sex toys, see this piece in the wonderful I-Pleaders blog.

Conclusion:

All of this no doubt makes for salacious reading. And furthers our series of posts on IP-Juris-prurience (see here and here).But on a more serious note, we need step back and ask: is it prudent to vest the Patent Office with the authority to make “moral” or immoral determinations of this nature? Do they have the institutional competence to wade into this problematic terrain?

This is not the first time the Indian Patent Office has rejected a patent on this ground. In an earlier post, I recounted an old rejection (as narrated to me by the dear departed Shanti Kumar-ji), where the Patent Office condemned an application claiming a new medicinal powder prepared from skeletal remains (of dead bodies dug up within a week of burial).

Patent offices often struggle with doing their regular job i.e. making “technical” determinations on the merits or otherwise of an invention (does it represent a significant enough cognitive/creative leap to merit a patent?). Having them play the role of a “moral” arbiter is moronic, to say the least! As this case amply demonstrates, apart from the issue of institutional competence, they don’t even get the law right (misinterpreting section 292 and section 377 of the Indian Penal Code). And even commit logical fallacies in their reasoning, apart from a torrent of tortuously worded and grammatically goofy sentences.

Given the various infirmities with this problematic patent rejection, I wonder why it wasn’t appealed. Or was it?

ps: In future posts, I hope to reflect on the comparative position of this patent in other countries (the Indian patent office claims that this patent was rejected in Japan as well: but a quick search reveals that it was only abandoned there, and not rejected). I also hope to bring you the fascinating side story of how Standard Innovation sued one of its biggest competitors over this patent (before the ITC and other US courts) and how it had to finally settle, after a mixed bag of results (see here and here).

pps: I really want to thank Pankhuri Agarwal for pointing me to this case and for helping with this post. Also, image from here.

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

7 comments.

  1. Anonymous

    Dear Shamnad/ Pankhuri:

    Even for a regular decision tracker like me, I must admit I missed this one 🙂
    I think the Patent Office has no business in rejecting this Application. Their arguments are incorrect and I wish that the Applicant had a (fair) shot at an IPAB appeal … but considering that IPAB is not functioning at full strength, the only other option is S.77 review and I am not too hopeful there …

    Freq. Anon.

    Reply
  2. JUNICHI MATSUO

    Japanese application 2007-545799, which is the counterpart of this indian patent application, was rejected based on Article 32 of Japanese Patent Act,

    Article 32 Notwithstanding Article 29, any invention that is liable to injure
    public order, morality or public health shall not be patented.

    Notice of reasons of refusal was issued on 17 June 2011, and no response was filed. Then this case was rejected on 2 December 2011. Thus this case is rejected, not abandoned.

    According to Japanese Examination Guideline on Unpatentable Invention (http://www.jpo.go.jp/tetuzuki_e/t_tokkyo_e/files_guidelines_e/03_0500_e.pdf), I consider this decision is unavoidable, since it seems this application only emphasize the pleasure, rather than the health or any other merits.

    Reply
  3. Anonymous

    Dear sir,
    With due respect, please check the matter thoroughly before writing your so called open thoughts.
    A patent rejection does not mean that the company cannot manufacture or sell the product in our country.
    It simply means that exclusive right cannot be given.
    The decision was taken on the basis of The Indian Patent Act. The controller has not taken any independent manner.
    My sincere request is that please gather some knowledge about the matter before writing such articles. It is immoral because of law, not because of the Patent office.
    If you want to purchase, you can purchase at any time anywhere if it is available and gift it to your near and dear ones.
    The Indian Patent Office will not object for it.
    So please do not make it your hobby to criticise the govt/govt officers for whatever they do.
    And at last for the last part of your article, the govt recruits science graduates not English honours students. English is just a language, do not judge anyone by his knowledge of English.

    Reply
    1. Shamnad BasheerShamnad Basheer Post author

      Huh? So its not “obscene” for the purpose of sale? But “obscene” for the purpose of denying patentability. One set of laws for the country. And another set of laws for the patent community is it? This is even funnier than I thought! And no, nobody ever expects patent officials to have sophisticated Tharoor like English. But to at least write in clear lucid language. Without confounding sentence structures and blatant grammar errors. Is that too much to ask of quasi judicial officers that are authorised to dole out twenty year monopolies?

      Reply
      1. Anonymous

        There is only one Patent Act in the country and the officials of the Indian Patent Office have to abide by that law only. The patent office is not the appropriate authority to decide what can be sold in the country and what not. They only decide if a certain method or device withstand the tests defined in the Patent Act to give the applicant the exclusive right for the same.
        For example, patents for cigarettes are not allowed as per the provision of section 3(b) of the Patent Act because they are injurious to human health, but they are sold in the country because the govt allows them.
        The simple rationale behind these type of restriction is that R & D for the products, which are harmful to the animal or public health or environment and against the morality or public order, should not be promoted.
        You have every right to have your own view but the law is drafted taking into consideration all the angles involved in it.

        Reply
        1. Pankhuri Agarwal

          Pl read the post carefully. We never said that the Patent Office should decide what can be sold in the country or not. Or that it should have allowed the patent for the vibrator just because the Govt allows them to be sold. In fact, it’s the Patent Office only that has used the criminal law provisions (Section 292 and 377) to say that sex toys are immoral and thus cannot be patented. We have simply questioned the Patent Office’s rationale for observing that sex toys are immoral. How and why are these objects immoral? This has not been explained by the Patent Office. The decision merely says that sex toys attract Sections 292 and 377 of IPC, which itself is incorrect as explained in the post. Other than that it just says that sex toys are useless and unproductive. Firstly, it is not so (as explained in the post). And secondly, how does something merely being useless or unproductive make it immoral?

          Reply
    2. Shamnad BasheerShamnad Basheer Post author

      Quasi judicial officers are meant to “reason” out their decisions. In clear lucid language so that parties and the public understand why they’ve decided the way they did. Thats the least expected of a public functionary that is authorised to hand out twenty year monopolies. And paid through tax payer money, if I might add. if they fall short on this count, its imperative that this be redressed..through more rigorous selection/promotion procedures and more training programmes. Without using it as a fall back excuse each time: Oh well! they’re science folks. How do you expect them to interpret the law? If they can’t read and interpret the law reasonably decently, they have no business being in a post that vests them with such vast powers. We’ve reflected a bit more on this in a follow up post here. https://spicyip.com/2018/08/the-morality-of-sexual-pleasure-patent-office-training.html

      Reply

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