Prateek Charan
An Electronic Cigarette comprises nicotine without harmful tar. It includes a shell, a cell, nicotine solution, control circuit and an electro-thermal vaporization nozzle installed in the air suction end of the shell. The advantages of the invention are smoking without tar, reducing the risk of cancer, the user, however, still gets a smoking experience, the cigarette is not lit and there is no danger of fire.
Invention
The original technology, involving battery-powered heating systems that vaporize nicotine-laced liquid, is credited to Hon Lik, a Chinese medical researcher, in 2003. In 2005, just 150 e-cigarette inventions were described in published patents. By 2012, the figure jumped to 220 and by 2015, it was over 500 inventions, as per the research of the IP & Science business of Thomson Reuters. So far, the total has reached over 700; this is possible because a single invention can very well be covered by several patents.
This technology has since become popular and is now estimated to be worth over $3.5 billion.
Indian reluctance
The Indian government, however, has recently imposed a ban on e-cigarettes, by passing the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019 on the 5th of December, 2019. Since the issuance of the ordinance for banning e-cigarettes, the Controllers at the Indian Patent Office (IPO) also seem reluctant in allowing the claims directed towards e-cigarettes. Inter alia, the Controllers have started raising the objection under Section 3(b) of the Patents Act, 1970, which states that “an invention, the primary or intended use or commercial exploitation of which, could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment is not patentable”. And, as per the latest manual of patent practice and procedures issued by IPO, the examples of inventions that may fall within the purview of Section 3(b) include, inter alia, inventions that may cause injury, and the IPO intends to put the e-cigarettes under this sub-category.
This change in the stand of the IPO towards e-cigarettes raises grave concerns, at least, for the applicants having the patent applications relating to e-cigarettes and associated products pending for examination at the IPO.
This reluctance is not just limited to India, but many other states, especially in the US, have released some regulations governing the use of e-cigarettes. Thus, the feeling of contempt regarding e-cigarettes is universal.
The ironical situation is that while smoking and conventional cigarettes are still allowed in the country, the e-cigarettes, which claim to reduce the harmful effects of smoking in comparison to the traditional cigarettes, are banned.
Article 4quater of the Paris Convention, 1883, states that the grant of a patent shall not be refused and a patent shall not be invalidated on the ground that the sale of the patented product is subject to restrictions or limitations resulting from the domestic law. A similar stance is taken by Article 27 of the TRIPS Agreement, 1994.
The Challenges
The problem with not granting patents by the IPO is that soon such inventions will be publicly available for use by anybody and it will not be practically possible to regularize them. At least, after granting of patent, the rights of the invention belong to the Applicant only and it would be still possible for the government to regulate the intended use, if required.
Moreover, the ban on e-cigarettes would anyway supersede the patent right anyway, even if granted. So the allowance of patent application does not hamper the effect of the ban on e-cigarettes in India.
Another anomaly is the enmity between the different ruling parties. This country has, over the years, witnessed such phenomenon quite often where the new government counters the move of the previous government. Relying on this cyclic practice, it would not be completely immoral to say that when the new government comes, there is a chance that the ban on e-cigarettes can be removed, and if that is done, it would only lead to an irreparable loss to the Applicant.
Conclusion
E-Cigarettes, though are one of the upcoming concerns in the Intellectual Regime, need to showcase a lot about their potential. Though they claim they are important tools for reduction of harm caused by traditional cigarettes, critics fear the devices may instead fuel a new wave of nicotine addiction and cite a lack of long-term scientific evidence to support their safety, this is said because in essence they are less harmful to the lungs than traditions cigarettes that use tar and nicotine in a high concentration.
As regards the Indian reluctance in getting them patented, these inventions actually focus on reducing the harmful effect of smoking, instead of actually causing serious prejudice to human, animal or plant life. Therefore, such inventions cannot be held to be non-patentable under Section 3(b).
The problem of not getting a patent is also prevalent in many of the states of USA. The problem is that governments think they will create a new wave of addiction, with them claiming to use less tar and being less harmful, there is a chance the non-smokers may take a try at it, and if they like the ‘vaping’, they can very well jump to traditional cigarettes.
In my opinion, the stance of the governments in showing reluctance to patenting the E-cigarettes is justified, however, they must in this case bring in regulations to control the manufacturing, supply, storing, etc. of traditional cigarettes as well. Since they too, are not less harmful, and are a major cause of cancer. So if Public Policy is the ground taken by the government, they must go at it hammer and tongs.
Bibliography
- IFI CLAIMS Patent Services
- Thomson Reuters
- Lexology.com
- Ministry of Law and Justice
- The Patents Act, 1970
- Paris Convention for the Protection of Industrial Property, 1883
- Trade-Related Aspects of Intellectual Property Rights, 1994
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