![handle is hein.journals/jnloitl3 and id is 1 raw text is: Journal of Intellectual Property Studies
Vol. III (1), January 2019, pp. 4-8
OBSCENELY SUBJECTIVE: ADJUDGING IP ELIGIBILITY OF OBSCENE
INVENTIONS AND WORKS
TANMAYA NEGI & YOGITHA RAMU
Obscenity is a permissible restriction on the freedom of speech and expression in the
interest of public decency and morality. Considering that it seeks to protect the public
morality at large, it is only natural that what is obscene, and hence prohibited, should
be a reflection of what the average person thinks is obscene. This is embodied in the
'community standards test', which is the applicable test for determination of obscenity
as per the Supreme Court in Aveek Sarkar v. State of West Bengal [(2014) 4 SCC 257].
Since community perceptions are not static, what is obscene must also remain a fluid
concept. It should be distinct from the standard of a vulnerable minor, a susceptible
adult or even the romanticized morality of Indian tradition and values. Which is
perhaps the reason that those of us who consider ourselves the average reasonable
adult are often left flabbergasted by the perceptions of obscenity espoused by the
Courts and more recently, the Patent Office.
Though, the Patent Act, 1970 does not mention 'obscenity,' Section 3(b) limits the
concept of an invention as precluding, inter alia, any invention the primary or intended
use or commercial exploitation of which could be contrary to public order or morality.
Unfortunately, the Patent Act does not lay down a threshold for what may be
considered contrary to public order or morality leaving much scope for subjectivity. For
instance, as per the decision on the application by Standard Innovation Corporation,
pertaining to its 'sexual stimulating vibrator,' the invention was considered to be
'morally degrading' and 'obscene'.
Sex toys have been granted patents across jurisdictions for ages, albeit most Patent
legislations do no create this exception of public morality. Even in India, sex toys are
not per se illegal or obscene. The Calcutta High Court in the case of Kavita Phumbra v.
Commissioner of Customs Port [2011 SCC Cal 2378], where the appellant had sought
to import of sexual games which were seized as customs due to them being obscene,
noted that considering the standard for the pictures, newspapers and articles being
published and are freely available in the market, a discernible shift in the moral and](ViewImageLocal?handle=hein.journals/jnloitl3&div=1&collection=&method=preview&ext=.png&size=3)
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