Just as a draconian sexuality law is struck down in India, a patent office ruling has sparked new debate about what should be allowed in the bedroom, write Shamnad Basheer and Pankhuri Agarwal

As India comes to terms with a landmark ruling from the constitutional bench of the Supreme Court that effectively legalizes gay sex, another moral judgment involving what goes on in the bedroom has raised interesting legal questions, not least for those companies with products that some might deem immoral.

First, it is worth recalling part of the Supreme Court’s judgment: “Only constitutional morality and not social morality can be allowed to permeate rule of law. Sexual orientation is one of the many natural phenomenon. Any discrimination on the basis of sexual orientation amounts to violation of fundamental rights.”

Unlike the Supreme Court’s decision on human rights and liberties, which was deliberated over by some of the most senior judges in the country, another moral judgment was passed by a different branch of the establishment – the Indian Patent Office. This ruling dates back to April 2017, but has recently received widespread attention in India and overseas.

The office refused to grant Canadian firm Standard Innovation Corporation a patent for the claimed unique design of its We-vibe product, a sexual stimulation device for women. In the company’s patent claim, lodged in several countries including India, it says the device is dimensioned to be worn during intercourse.

The refusal hinged predominantly on section 3(b) of the Patents Act, 1970, which excludes immoral inventions from patentability, defining them as “an invention the primary or intended use or commercial exploitation of which could be contrary to public order or morality, or which causes serious prejudice to human, animal or plant life or health, or to the environment”.

In its first examination report (FER), issued on 4 April 2014, the Patent Office objected to Standard Innovation’s application on multiple grounds. The main objection was that the invention “could be” immoral and, as such, excluded under section 3(b): “The subject matter claimed in the instant application relates to a ‘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.”

OTHER CASES

This was not the first time the Patent Office rejected a patent on such grounds. In one unreported instance, the office rejected a patent application that claimed a new medicinal powder was prepared from the skeletal remains of dead bodies dug up within a week of burial. Digging up graves for profit-oriented purposes was seen as highly objectionable by the office.

More recently, in 2016, patent applications covering three inventions were rejected as immoral and violative of public order since they could be used in the process of printing banknotes, and since “printing of bank notes is a sensitive matter and is an area lawfully banned and prerogative of the state”.

So, decisions based on what is perceived as morally unacceptable are not new, but Standard Innovation was not prepared to let this decision go uncontested.

THE APPLICANT’S REPLY

The company filed a reply to the Patent Office’s FER through its law firm, Anand and Anand, in March 2015, noting: “The learned controller appears to have objected to the claims on the basis that they are directed to a sexual device that can be used to stimulate sexual desire, and, consequently, could be contrary to public order or morality. We respectfully submit that the claims as amended are directed to a sexual stimulation device that is dimensioned to be worn by a female during intercourse. In fact, one embodiment of the presently claimed device has been successfully marketed as the We-vibe, which is a couples’ device designed to be worn while making love and can be used by couples to improve their sexual relationship.”

More technically descriptive language followed, and then: “Based on the foregoing, we respectfully submit that the presently claimed device is not contrary to public order or morality, but would rather benefit the public, for example, by improving relationship satisfaction and health.”

Despite the applicant’s reply, the Patent Office reiterated its objections and scheduled a hearing. However, the applicant did not appear for the hearing or file a written reply.

THE DECISION

In April 2017, the Patent Office (speaking through an assistant controller) refused to grant the patent, insisting on the same morality objection as above in its FER, with the addendum: “Mostly, these are considered morally degrading by the law.”

Its decision contains some knotty nuggets on sex and the law, pontificating on why sexual pleasure is morally abhorrent and how sex toys are obscene objects under the law. It also described such toys as useless and unproductive. Let’s consider the Patent Office’s main arguments:

“Mostly [sex toys] are considered morally degrading by the law,” the office ruled. “The law views sex toys negatively and has never engaged positively with the notion of sexual pleasure.”

It is unclear how the Patent Office arrived at the finding that the law is at odds with “sexual pleasure”. It conveniently forgets that India is the land of the Kamasutra, a treatise touted today as one of the bibles on sexuality. In fact, it also contains references to sex toys.

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

For those who use sex toys, this may come as a rude shock. A complaint filed by Standard Innovation against LELO, an industry competitor, with the US International Trade Commission, spells out the many benefits of such devices: “[They] 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, and thereby contributing to an overall wellness/productivity gain for the individual.”

Perhaps by “productive”, the Patent Office actually meant the ability to “produce” children – the main point of sex, according to section 377 of the Indian Penal Code (IPC).

SECTION 377 AND UNNATURAL SEX

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

Section 377 of the IPC criminalized any sexual activity allegedly against the “order of nature”, including homosexuality and any other form of intercourse outside of procreative sex, perhaps even the use of condoms, as has been previously argued.

Fortunately, in a recent ruling (Navtej Jauhar v Union of India), 377 was struck down in large part as unconstitutional by the Supreme Court. Any discussion on its current applicability is therefore moot.

However, at the time that the Patent Office invoked it, it was very much in force and, therefore, merits review. Firstly, its invocation in this case is somewhat surprising 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 this scope. 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”.

OBSCENE OBJECTS?

“Importing and selling sex toys, [they are] considered ‘obscene’ objects and, hence, illegal in India. Under section 292 of the IPC, which defines the term ‘obscene’ and provides for punishment for distributing any such object. Section 292 (1) defines ‘obscene’ as ‘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 Phumbhra v Commissioner of Customs (Port), Calcutta, Calcutta High Court held: “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 on the wrong side of the law.”

In the We-vibe case, the device’s design was fairly innocuous in that it looks like a pair of headphones; and is therefore 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) of the constitution.

PATENT OFFICE: A MORAL ARBITER?

Ultimately, we need to ask if it is prudent to vest the Patent Office with the authority to make determinations about morality. Does it have the institutional competence to wade into this problematic terrain? And what are the wider implications for businesses with products that some may deem immoral such as drugs and deadly weapons?

It is critical that these matters go to court so that we have clear norms relating to what can pass for an immorality or public order exception. The standard must be kept high. A very low standard may also contravene the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

MORALITY, LEGALITY AND TRIPS

It is important to note that while refusing to grant the patent for a sex toy on the grounds of immorality under section 3(b), the Patent Office relied on the alleged illegality of such toys under Indian law; and more specifically sections 292 and 377 of the IPC. It did not offer any further reasons on why the commercial exploitation of sex toys would necessarily contravene moral norms or disrupt public order.

Section 3(b) of the Patents Act is worded in language similar to that found in article 27.2 of TRIPS, which allows member countries to exclude immoral inventions from patentability. The provision reads: “Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect public order or morality, including to protect human, animal or plant life or health, or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.”

As can be seen from the above, an invention cannot be excluded from patentability by a member country merely because the exploitation of products embodying the invention is prohibited by its law. In other words, the illegality of the product is not determinative of whether it is also immoral.

Therefore, even if we assume that the commercial display/marketing of sex toys is illegal in India, this in itself is not sufficient to preclude the invention as a patentable one. Consequently, one might argue that the Patent Office’s decision applying the morality exception on the basis of illegality alone could well be in breach of TRIPS. However, this is just a prima facie view and will require a more detailed assessment.

Patent offices often struggle to do their regular jobs, which involve making “technical” determinations on the merits of an invention (does it represent a significant enough cognitive/creative leap to merit a patent?). Having them play the additional role of moral arbiter is a tall order, to say the least.

Shamnad Basheer is the founder and Pankhuri Agarwal is the managing editor of SpicyIP.