It was recently all over the news that Standard Innovation, the maker of “We-Vibe” products, was denied a patent for its C-shaped vibrator by the India Patent Office. Normally, denial of a patent is not newsworthy. This case raised eye brows though because the decision was based on a characterization that the device’s intended use or commercial exploitation could be contrary to ‘public order’ or ‘morality’. It’s the age-old argument that dildos and sex toys are scandalous and immoral… And people are tired of it.
Section 3(b) of The Patents Act, 1970, in India provides, in pertinent part:
The following are not inventions within the meaning of this Act,—
(b) 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;
The India Patent Office decided that the We-Vibe vibrator fell under this section of the law, and accordingly, was not entitled to a patent. The decision discussed that importing and selling sex toys in India is illegal as under Section 292 of the Indian Penal Code it is unlawful to sell or distribute “obscene” objects. “Obscene” is defined there 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.” The law provides prison time of up to two years for a first offense, and as much as five years for a second.
The decision indicated that the country’s Supreme Court has attempted to devise a test for what is “obscene”. The decision states, in pertinent part:
…every Judge is required to examine whether the matter is so gross and its obscenity is so decided that it is likely to deprave or corrupt those whose minds are open to influence of this sort and into whose hands the matter is likely to fall. In doing so, the Judge should factor in the overall view of the obscene matter in the setting of the whole work, interests of society, influence of the obscene matter, contemporary mores and standards and preponderating social purpose of the obscene matter.
Relying on such test, and that “[Section] 377 [of Indian Penal Code] bans any sort of sexual intercourse that is termed to be unnatural biologically,” the India Patent Office held that “sex toys … are banned on the premises that they lead to obscenity and moral deprivation of individuals[, and they] … are not considered useful or productive.” In fact, the Office even went so far to state, sex toys “…are considered to be morally degrading by the law. The law views sex toys negatively and has never engaged positively with the notion of sexual pleasure.”
Having a morality clause written into patent laws is not new. An international treaty on patent law, “Trade-Related Aspects of Intellectual Property Rights” agreement (of which the U.S. is a member), permits member states to exclude inventions from patentability in the name of “morality.” The language of treaty states in Article 27.2:
Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public 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.
Today, these morality questions typically come up though in relation to genetic engineering and ethics. For example, should patents be allowed on human genes, or genetically-modified animals? In my opinion, these questions seem like much more trying questions of ethics than whether women should be allowed to use dildos. Thankfully, in the U.S. and much of the developed world, we’ve come a long way. Accordingly, sex toys are not prohibited patent protection on moral grounds in a vast number of developed countries, including the United States, European Union, Canada, Mexico, Australia, China, and others.
This does mean though that these countries always allowed such patents. The 1623 Statute of Monopolies (UK), expressly limits the scope of patentable subject matter. Patents may be granted if they are “…not contrary to the law nor mischievous to the state …, or generally inconvenient”. This is considered the first statutory immorality clause, according to “BIOTECHNOLOGY – Volume XIII, Inventions, Patents and Morality” by Darryl R. J. Macer, page 82. Such book also says that in the UK Patent Office manual of 1907, there was a refusal to grant patents for contraceptives and sexual aids.
Even in the United States, though not included in a statute (i.e. black letter law), there existed a “Moral Utility Doctrine” from case law (i.e. court decisions). The Doctrine emanated from an 1817 court decision that stated that an invention could not be patented if it conflicted with the “sound morals of society.” The patents for vibrators in the early 1900s make no mention of sex or sexual uses. Vibrators with vacuum attachments (1912), heat-up vibrators (1913), and hand-strapped vibrators (1914) appeared in patents. By 1923, a clitoral suction device snuck into a patent for a Medical Suction Device, but nothing about orgasm or sexual pleasure was mentioned in the patent. Perhaps, this omission was purposeful in light of the Moral Utility Doctrine. The United States Patent & Trademark Office (USPTO) and the courts relied on this doctrine until about 1980, when a series of cases shifted away from this school of thought.
India appears to trail behind the progress of other developed countries in decriminalizing, and legalizing, the sale and distribution of sex toys, as well as other sexual autonomy matters such as gay sex. The constitutionality of Section 377, specifically with regard to its ban on gay sex, is currently under review by the India Supreme Court.
Although it is reported that sex toys are being sold in India, its legality is, at best, still unclear. Even in the face of that, according to Entrepreneur India, players in the sex toy industry are moving into the market. Hopefully, the patent office of the land where Kama Sutra was developed will soon recognize the diversity of human sexualities and expression, and its patent office will follow in allowing for protection of innovations meant to further pleasure for everyone.