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Morality-Obscenity Dichotomy: An Unfathomable Intellectual Property Law Approach

Article by Lokesh Vyas

Should the legality (measured by the yardstick of morality) of the subject matter be taken into consideration while giving Intellectual Property Right? This question gets the utmost relevance when read in the light of the current decision of Indian Patent Office where it denied the patentability of a sex toy. The primary justification for the same is immorality which is the most subjective concept existing in the world today. Legalization of gay sex by the Indian Apex court has broken the shackles of parochial and stereotypical mindset and explored the dynamic nature of morality. It set a mark that social standards are dynamic and have changed now. However, the recent patent denial to a sex toy posed an opposite view to the world. The present case of denial and objection raised by the Indian Patent authority is a depiction of morality-obscenity dichotomy.

Testing on the Anvil of Traditional Theories of Property

In India, IP law contains certain provisions where morality and public order can be a valid justification for denial of granting of patents. However, the fundamental objective of IP law does not appreciate such denial. The underlying principle of Intellectual property law stems from the labor theory of John Locke which says a person should be rewarded for his labor and such reward is in form of entitlement to the created property. The principle interpretation of the above rule de-legitimizes such denial because a person’s work is the expression of his labor and personality. The underlying aim behind awarding labor is to incentivize and motivate a person to come up with a new work for the society. As per the avoidance theory of Locke, no one wants to labor/work because labor is a painful activity, therefore, the people who labor and create property are special and this specialty should be rewarded. People create a property by putting their labor which is ultimately added to the common stock of society. Thus, society gets the ultimate benefit of such creation. This is another reason for which they are rewarded with certain rights over that property. By this analogy, denial of IP right does not seem to be in comity with the Lockean theory of property.

Here, it might be validly argued that if Intellectual Property right is given without considering the legality of the subject matter, it would create an unfettered IP regime where anyone can get right over anything. But it needs to be highlighted here that in order to get IP right the applicant has to fulfill certain conditions.

Denial by the Indian Patent Office

In the above case of Patent denial, the applicant was Standard Innovation Corporation and claimed a creative vibrator named as “We-Vibe”. It was different from other vibrators in terms of its looks because unlike other vibrators it looks like a U-shaped device and can be resembled with headphones. It is innovative in terms of its function as it offers a dual stimulation to a woman. Furthermore, it can be used during regular sexual intercourse.

To bolster the above denial, Section 3(b) of The Patents Act, 1970 was used as legal weapon which denies Patent protection to “an invention the primary or intended use or commercial exploitation of which could be contrary public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment”. However, the term morality and public order has not been defined by the act itself which impels one to open section 292 of Indian Penal Code, 1860 which states that “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 or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it”. However, the above section does not contain the word morality. The above section contains an exception which clearly expounds that the section is not applicable when it is justified for the public good on the ground that the same is in the interest of science, literature, art or learning or other objects of general concern. Here, the aforesaid exception is not exhaustive but an illustrative one, therefore, the said denial should have been tested on the anvil of the terms “other objects of general concern”. But it was not done by the authorities thus, the purpose of the ‘We-Vibe’ i.e. enhancing the sexual pleasure of the couple was overlooked by the authority.

The Existing Dichotomy

The moral ground given to justify the above denial fortified the self-professed morality of Indian patent office by epitomizing the fact that how nebulous moral principles can be used as a legal weapon to justify an act.

While refuting the patent, the said object was said to be a “sexual stimulating vibrator” and thus held immoral. Here, if the underlying assumption is that “something related to sex/sexual intercourse is immoral” then there would be a long list of objects which should have been declared immoral and illegal. Going with the same analogy, a condom should also have been held immoral and obscene because of its seductive packaging. This particular incident sets an example for the moral-obscenity dichotomy.

Indian patent authority read/interpreted obscenity and immorality as one. But there is a fallacy that flows with the above assumption because something which is obscene may not necessarily be immoral and vice versa for e.g. killing an innocent person may be immoral but not obscene and a condom advertisement may be obscene as it is likely to arise one’s prurient interest but is not always immoral.

Besides morality, public order was another reason which helped the authorities in justifying the denial. The absence of the definition of the term Public order in the Indian Patent Act, 1970 seemed to be a virtue for interpreting authorities as it led the open interpretation of the section.

In furtherance of the same, it is to be understood that even if the said invention was granted patent, it would not have impacted public order because there is no proximate relationship between grating patent to a sex toy and public order because sex toy is part of one’s private life and thus not a subject matter of public concern. Therefore, one’s using “We-Vibe” would not have any proximate nexus with the public interest because a sex toy is not something which is used in public (supposedly patent was granted), hence it is least likely to disturb public order.

Now, bringing Locke’s Non-Waste principle (which says that a person should not produce a thing which yields no benefit) would make the situation more questionable because here the denial disentitles him from any benefit. Now shifting to the labor theory of Locke, he doesn’t have any incentive to come up with such invention because his creativity is not appreciated hence ultimately impacts the fundamental objective of IP law i.e. to provide incentives to create and serve the interests of the public by promoting economic growth.

Inadequacy of IP laws

This case is not only pertinent to India because it shows how morality-obscenity dichotomy plays a very vital role while determining the legality of any act/object. This dichotomy often enables the authorities to use morality as a yardstick to determine the legality of an object/act. The relevancy of the case is not just for India but for the entire IP law regime. Because whenever a statute gives morality as a ground for determining the legality, it creates a broad leeway to the interpreting authority to use it as a tool. The concept of morality is said to be molded according to the social standards but the irony is that these standards are not defined by any court or in the book and even if they are defined they keep changing.

Here, certain questions arise that if today X (an inventor) is denied patent protection because of social standards of morality and decency but the same or similar invention is granted patent after a particular span of time to some other person then whose fault would it be? Would it be the fault of X to invent such thing in the wrong span? Or is it the society’s inability to set inadequate standards? Or should the standard-setting authority or standard defining authority be held responsible for treating the same inventions differently in different time spheres? Or it is the inadequacy of intellectual property to resolve such matters?. These question often remain unanswered. Thus, only moral reasoning should not be encouraged for giving a legal justification because doing so shambles the rudimentary premises of law (here the Intellectual Property Law).



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