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