SpicyIP:Patents for a Smoke !!!

The Controller of Patents and Designs has issued an advertisement related to Godfrey Philips’ new invention a Cigarette cum matchbox in the latest patent journal

According to the company, which filed application on October 31, 2005, the improved cigarette packet with match box comprised a slide having side flaps on two longitudinal sides and end closures at the two transverse sides.’

Godfrey Phillips, which manufactures leading cigarette brands - Four Square, Stellar, Red and White and Cavanders - aims at giving smokers an option to do away with a separate lighter or match box.’(ET, PTI)

In keeping with the statutory requirement of a Pre-grant publication, the Controller has invited comments, objections and public opinion on inventions prior to the grant of a patent.
The Pre grant publication is a healthy provision (there are mixed opinions, some aver that it is a hamstring too given the ambiguous timeline) incorporated in the Indian Patent Law in that as it allows public participation in policy formulation; on the publication and advertisement of an invention in the Journal the Controller invites the public in the stipulated manner to raise objections if any on matters relevant and pertinent to the invention pertaining to subject matter patentability, on prior art, disclosure requirements including morality and public good concerns.

This Pre-Grant provision assumes added importance in the light of inventions that are likely to raise a moral controversy and could thus be used as an effective pre grant ethical control as well.

Section 3(b) that is also in consonance with Article 27.3 of the TRIPS Agreement states that

Any invention ‘‘the primary or intended use of which would be contrary to law or morality or injurious to public health.’

Thus the morality exception is clearly factored in the Indian Patent Legislation and is a valid ground for the refusal for a patent

Readers may recall Shamnads earlier post ‘Diggers, Immoral Patents and the NBRA’ that dealt with the ‘morality’ exception provisions in the Indian Patent Law."Right from its inception in 1911, the Indian Patent regime have always had a ‘morality’ exception


Up until now the morality exception has been applicable to contentious inventions in the life sciences domain. With industry getting competitive, industries and scientist across the spectrum could find themselves come up with R&D that could seemingly appear prejudicial in a larger public good and morality standpoint. Profit maximization vs. public good may vie for predominance in conflict zone.
Godfrey Philips invention may in a macro corporate perspective could be passed of for strategic business strategy aimed at enhancing shareholder value. Business ethics one may say!
Nothing out of line with the Company intending to commercialize, diversify or provide a value add to its existing product lines. Nonetheless in a larger social light, what does such an invention add up to? Essentially a contraption that facilitates the smokers urge. Is the invention inimical to a larger public good, enough for the purists to invoke section 3(b) in opposition and thereby prevent an invention of such nature from corrupting the moral fabric of society?

A lot rests on the definition of morality and it is for the ethicists and the public to add meaning and substance to aid the legal definition of the term. Is there something as timeless morality, on a philosophical note???

That the cigarette industry may well contend and legitimately so that such a stance smirks of hypocrisy, when cigarettes per se has not been banned, it makes sound contention that the morality exception cannot be invoked since the “commercial exploitation” of the primary invention is by itself not banned.

Article 27of the TRIPS Agreement reads thus (the Indian corresponding section worded similarly)

“Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality”

If commercial exploitation itself has been permitted of cigarettes, it may be very difficult to argue that any inventions pertaining to this ought to be banned.

Perhaps somewhat of an extreme analogy, nevertheless one in defense-should a novel gag mask that aids euthanasia be granted in a patent in country where the practice of euthanasia raises outrageous moral, social apprehensions.???

Not exactly euthanasia, but smoking statistics and the resultant mortality rates amongst the Indian population, not to mention child smokers, is distressing enough!!!

Also of relevance is the fact that should such innovation be accorded legal endorsement when India’s Anti tobacco campaign is at its vociferous best.
The Union Health Minister Anbumani Ramdoss has been a tireless active crusader in the Anti-Tobacco campaign, much to the ire of the politicians and the Bollywood superstars who are patronized by the deep pocket tobacco lobby
The Government of India has passed the Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution Bill in 2003 that aims to prohibit direct and indirect advertisements of tobacco products, prohibit of the sale of tobacco products to minors, and prohibit smoking in public places

In objective analysis, one may argue that if the Controller denies a patent to this invention would this directly impact or curtail the smoking habit and inhibit smoking trend. The answer may not necessarily be in the affirmative. This innovation is merely an object of utility and an add -on to something that already exists.

But what about moral utility. If the moral utility doctrine is applied as a parameter would this innovation pass the public health patent muster? Can we be so unabashedly utilitarian that larger public health interest be sidelined? A lot rests on the interpretation and connotation of what is ‘morality’-an acceptable definition would be one that is sensitive to upholding the sanctity of life and human dignity.

As much as it is every citizen’s right and responsibility to exercise his franchise, it becomes incumbent on every responsible citizen to lend his voice to debates such as the above; contribute towards fostering not only a robust innovation ecosystem but a socially healthy one.Vox Populi!!!