Indian Patent Office refuses patent for Vibrator, Law views sex toys and “sexual pleasure” as unlawful material
It was decided by Indian Patent Office (IPO) more than a year ago refusing patent to a sex toy/ vibrator has come to light now and has garnered attention for its interesting take on obscenity and sexual pleasure.
The decision which rendered on April 17, 2017 was first published by Spicy IP.
The vibrator in question “we vibe”, is a u-shaped device which as per its website offers extra stimulation to the clitoris and G-spot of a woman while engaging in sexual intercourse. The woman has to wear it during sexual intercourse.
The patent application for the same was made by Standard Innovation Corporation, the manufacturers of the vibrator.
The application on objections was heard on April 6, 2017 before it was rejected. The reasons rendered with respect to morality, obscenity and sexual pleasure which has been listed as one of the reasons for denial of a patent, is what makes for an interesting read.
The decision begins by stating that “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 and is not allowable.”
The decision refers to Section 292 of Indian Penal Code before proceeding to elucidate the ambit of “obscenity”.
“Now the question is whether or not a sex toy is an ‘obscene’ object. The dictionary meaning of ‘obscene’ is “dealing with sexual matters in an offensive or disgusting way by accepted standards of morality and decency. In the legal context, ‘obscenity’ is used to describe expressions which offend the prevalent standards of public decency and morality”, the decision states.
Placing reliance on Supreme Court judgments, the decision states that 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.”
It is then that the Patent Office gives an interesting take on law and its engagement with the notion of sexual pleasure.
Law has never engaged positively with the notion of sexual pleasure and it views sex toys negatively, the decision states.
Sex toys (sexual stimulation device), also known as adult toys are banned on the premise that they lead to obscenity and moral deprivation of individuals. They are considered morally degrading by law. Further, it was also the opinion of the IPO sex toys are not useful or productive.
“..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. These are toys that are not considered useful or productive. Mostly these 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”
Most interestingly, the decision also refers to Section 377 of IPC which criminalises gay sex.
“Further the Article (sec) 377 bans any sort of sexual intercourse that is termed to be unnatural biologically”, it says wrongly referring to Section 377 of IPC as Article 377.
Eventually, the Patent Office also cited other reasons before refusing the application.
Source : Bar and bench