#PatLaw – The non-patentability of subject matters considered contrary to public order or morality.

The question of the non-patentability of inventions said to be contrary to public order or morality, differs according to local legislation and “good” morals.

A decision by the Indian Office rejected a patent application for a vibratory sex stimulator (WE VIBE brand of STANDARD INNOVATION Corp. (CA)). The decision is dated April 17, 2017, and can be reviewed at the link below.
The first objection comes directly into the heart of the matter and has a wording that surprises:
The examiner considered in essence that the exploitation of the claimed object is contrary to public order and morality, and falls under the provisions of Section 3 (b) of the Indian Patent Law, and is not acceptable.
The examiner further argues that importing and selling sex toys is considered “obscene” and therefore illegal in India.
Most surprisingly, these arguments are supported by Indian law. The examiner cites section 292 of the Indian Penal Code, and refers in addition to section 377. If the first concerns obscene objects whose definition interpreted by the examiner as including sex toys, seems debatable, the second refers to a prohibition of sexual intercourse that is unnatural biologically.

These objections seem insurmountable. The Applicant has obviously not made any counter-arguments.

Objections of this kind would surely have occurred also in countries where legislation is based on religious texts.

For the protection of this type of invention in “sensitive” countries, particular attention must be paid to provide, in the application, ways to overcome this type of objection where possible.

Unlike these countries, the protection of this type of invention at the European Patent Office does not raise this type of problem. Provisions of contravention of public order and morality exist (Article 53a EPC, GII4.1) but the corresponding objections are not conventionally raised for sextoys-type inventions. These objections are almost never raised in other cases.

The Guidelines for the EPO Examination provide in essence that if the invention in question would appear to the public [in all the EPO Contracting States] so repugnant that it would be inconceivable to patent it. The rejected applicant in India (STANDARD INNOVATION Corp.) has several European patents granted.

The EPO Directives mention, for example, a printer-type case with a good resolution enabling to make counterfeit banknotes. In this case, an objection may be raised, and will be surmountable by removing references to making counterfeit banknotes.


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