"The patent officer's regular duty is to find technical errors in the inventions made by humans. It is highly inappropriate for officers dealing with legal technicalities relating to inventions to decide on morality. Hopefully, the patent office of India recognizes and accepts human sexualities & expression and allows the protection of innovations meant to further pleasure for everyone."
MADHUMITHA LAKSHMANAN
“Obscenity” & “Morality” are old concepts, and using this dichotomy to set a limit for human invention is pointless. The current take of our patent office is that we are facing a lot of problems as a result of the advancement of technology and human ingenuity. As a result, there is a need to limit human creativity. Any innovation that violates societal values and public order, as well as being obscene and immoral, must be discouraged, according to the patent office. Setting this in a modern world, such as today, is unnecessary. Should legality as evaluated by morals be taken into account while granting Patent Rights? This question gets utmost relevance when viewed in light of the Indian Patent Office's decision to deny the patentability of a sex toy.
The Indian Patent Officers denied an innovative multi stimulation vibrator (sex toy) developed by the Standard Innovative firm in 2018 on the grounds of morality and obscenity under Section 3(b) of the Indian Patents Act. The Canadian firm has applied for patents in a number of nations, including India. However, Indian Patents Officers rejected the Canadian entity's claim, claiming that the device is considered morally reprehensible under Indian law.
Section 3(b) of the Indian Patent Act reads as follows;
“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 terms "morality and public order" can be used to justify the refusal of patents. Anti-social innovations are unethical, and patents are not granted for them. Human innovations are constrained, and according to our law and legal system, the innovation must be intellectual. The morality of the objects is tested by Indian Patent officers.
While rejecting the company’s plea, the Officers defend the reason for their denial by referring to Section 377 which criminalises 'unnatural sex' and also homosexuality. But Section. 377 was decriminalized in the judgement of Navtej Singh Johar V. Union of India[1]. The Supreme Court has overturned a 158-year-old statute on homosexuality that deemed it illegal to engage in carnal intercourse against nature's order.
In today's Indian society, the 1872 penal code's definition of obscenity is "hopelessly irrelevant." After independence, the Britishers left us with the concept of "obscenity." This antiquated rule was not enacted with a preconceived notion of homosexuality, the use of sex toys, etc in consideration.
In the case of Kavita Phumbra v Commissioner of Customs (Port) Calcutta [2], the Calcutta High Court held as follows:
“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 the 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.”
According to Section 292(2) of Indian Penal Code, the term obscenity reads as follows;
a. sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or
b. imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation.
In India, there is no clear prohibition on the sale or use of sex toys. Although there is no specific rule or section that defines sex toys, regulators believe they are unethical because they are used for sexual pleasure. While interviewing Mr Raj Armani, CEO of Besharam, India’s no. 1 sexual wellness brand for Zan, a Europe adult-based magazine said as follows,
“This is in stark contradiction of the fact that India is the 2nd largest consumer of porn, almost the most populous nation with 1.3B people (wonder how that came about) and the birthplace of Kamasutra.”
In the case of Joseph Shine V. Union of India[3], the Supreme Court held that the “Right to have sex is a fundamental right”. And the right to sexual autonomy and privacy and sexual determination have also been discussed at length. So, a single woman, a hetero couple, a homo couple, a trans couple and anybody can have a good time in their private moments. Using sex toys by adults in their private space should be given respect. There is no place for judgement in this situation. Lawmakers have no authority to determine what is immoral or indecent. There aren't any tests that are universally accepted. In the twenty-first century, this antiquated law must be updated.
To sanction patent right to the new invention is a long-time practice. This also applies to sex toys. It is never unethical or against public order to have sexual pleasure in a confined room. The Indian Patent Act's Section 3(b) should be reviewed and amended. The moral police are not the Indian Patent Officers who adjudicate on the morality of sexual objects.
According to Section 292 of the Indian Penal Code, obscene packages are prohibited. However, several Indian condom brands, such as Kohinoor, Kamasutra, Manforce, Playgard, and others, include obscene images in their packaging. Indian Patent Officers granted patents to these products. Viagra, on the other hand, is patented and used for sexual pleasure. If condoms and Viagra can be patented, then sex toys can be patented as well.
Male penis rings are freely sold in public, while vibrators, dildos, and others are considered obscene. Sexual pleasure can be enjoyed by both men and women. However, women's sexual pleasure is always shunned. On sex toys, sexual awareness should be emphasised. It is never useless. According to personal.com[4], there was a 65 per cent surge in adult toys and other sexual wellness products during the lockdown. If there is a demand for adult and sexual products, they should be sold and consumed without restrictions based on obscenity or morality.
The issue is two-fold: The legal status and the moral judgement. Although sex toys are being sold in India, their legality is yet undefined. We have no sex toy store; no women or men can explicitly carry a sex toy anywhere they go. Since everyone has the right to sexual pleasure, this needs to be changed and the 150-year-old law must be replaced with a new law. Even if there is a legislation that prevents people from exercising their basic fundamental right, it must be overturned. The patent officer's regular duty is to find technical errors in the inventions made by humans. It is highly inappropriate for officers dealing with legal technicalities relating to inventions to decide on morality. Hopefully, the patent office of India recognize and accept human sexualities and expression and allows the protection of innovations meant to further pleasure for everyone.
(The author, Ms. Madhumitha Lakshmanan is our intern pursuing final year law at the SASTRA deemed to be University, Tanjavur.)
[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 [2] Kavita Phumbra v Commissioner of Customs (Port) Calcutta,(2012) 1 Cal LJ 157 [3] Joseph Shine v. Union of India, (2019) 3 SCC 39 [4] http://thatspersonal.com/research-report-india-uncovered-2020.html
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