Introduction

Patent applications for sex toys face unique challenges during the examination process. As stipulated by Article 5.1 of the Chinese Patent Law, "For inventions-creations that violate the law, social morality, or harm the public interest, no patent shall be granted." This provision has become a significant threshold for patent applications in the sex toy industry. With the gradual liberalization of social attitudes and the development of the sex toy industry, accurately understanding and addressing this clause is crucial for protecting the innovative achievements of enterprises and inventors in this field.

Understanding Article 5.1 of the Chinese Patent Law

Article 5.1 of the Chinese Patent Law aims to ensure that patented inventions-creations conform to the basic value orientation of society. Among them, "violating the law" generally means that the purpose of the invention-creation itself is prohibited by law; "violating social morality" refers to inventions-creations that contradict the moral concepts and codes of conduct universally recognized by society; "harming the public interest" means that the implementation or use of the invention-creation will cause harm to the public or society, affecting the normal order of the country and society. For patent applications for sex toys, the examination mainly focuses on whether they violate social morality.

Social morality is not static; it evolves with social development and changes in cultural concepts. In different historical periods and regional environments, the judgment of whether the same type of invention-creation violates social morality may vary. For example, in the past, certain products or technologies related to sex may have been considered seriously violating social morality, but in modern society, with the gradual liberalization of people's attitudes toward sexual health, the acceptance of such products has increased.

Case Analysis of Patent Applications for Sex Toys

A technology company filed a utility model patent application titled "A Massage Mechanism and Massager" (Application No. 2021229397679) on November 26, 2021. The massage mechanism includes an elastic massage sleeve with a variable massage cavity provided with an opening, and a pressing mechanism inside the cavity consistent with the opening direction, where the pressing mechanism reciprocates toward the opening direction during massage. The examination department issued a rejection decision on April 29, 2022, stating that the invention belongs to non-medical artificial sexual organs or substitutes, conflicting with the provisions of Article 5 of the Chinese Patent Law.

The core dispute of this patent application lies in whether it constitutes artificial sexual organs or substitutes and whether it violates social morality. The applicant firmly believes that the technical solution achieves general massage functions, which can act on any part of the human body, and the specification does not refer it as a sex toy. It neither has the external appearance of human sexual organs nor the function of substituting for human sexual organs. It is just an auxiliary tool for physical stimulation of female sexual sensitive areas, not an artificial sexual organ substitute. Furthermore, the applicant pointed out that the public sale of sex toys implies that the public has a certain degree of acceptance of such products, and the invention should not be deemed to violate social morality.

In the reexamination proceedings, the collegial panel re-evaluated the application and found that the technical solution did not specify the product for use as a sex toy, and it did not have the external appearance or function of human sexual organs. It was determined not to be an artificial sexual organ or substitute, and the rejection decision was eventually revoked.

Strategies for Responding to Office Actions under Article 5.1 of the Chinese Patent Law

Clarification of the Technical Essence: In case of such office actions, it is advisable to argue that the technical solution of the patent application is not directed to artificial sexual organs or their substitutes. Taking the abovementioned application for a massage mechanism and massager as an example, the universality of its massage function shall be emphasized, which can act on multiple parts of the human body, is not specifically designed for sexual organs, and does not have the appearance or main functions of sexual organs.

Highlighting of Non-Sexual Functions: If the technology has other non-sexual functions in addition to its potential application in sex toys, these should be emphasized in the response. For example, some massage devices may have ordinary massage functions such as promoting blood circulation and relieving muscle fatigue. Relevant scientific evidences or research reports can be provided to support the existence of these functions.

Evidence of Changing Social Attitudes: Evidence reflecting the increased social acceptance of sex toys will be helpful. For instance, the holding of adult product exhibitions (such as the "Shanghai International Adult Lifestyle and Health Industry Expo" held every April) proves that such products are increasingly accepted by society. The public sales through online and offline channels show that consumers can purchase them freely without special restrictions, indicating that the public's attitude toward sex toys has positively changed, and such products are no longer universally regarded as violating social morality.

Strategies for Preventing Non-Compliance with Article 5.1 of the Chinese Patent Law

Avoid Sensitive Expressions: In patent applications, overly direct and sensitive sex-related expressions shall be avoided. For example, when describing product functions, objective and scientific language shall be used, instead of words with obvious sexual hints.

Highlight Diverse Functions: The multiple functions of the invention shall be highlighted in the specification, especially non-sexual functions. If the product has other functions such as healthcare or daily care, they shall be described in detail with the support of relevant experimental data or research reports.

Reasonably Define the Scope of Claims: For example, in the case of a patent application for a stimulation device, the claims should not focus too much on the function of sexual stimulation, but rather on a broader range of technological innovations, such as unique structural designs, new working principles, etc., so as to ensure that the scope of the claims is adequate for protecting the invention without raising questions of violation of social morality.

Conclusion

Although patent applications for sex toys face many challenges under Article 5.1 of the Chinese Patent Law, there is still a great opportunity to obtain patent protection through the adoption of effective response and prevention strategies. When responding to office actions, multiple aspects such as the technical solution itself, social attitude, industry development, and similar cases can support the legality of the patent application. On the other hand, optimized drafting skills can reduce the risk of non-compliance with Article 5.1 of the Chinese Patent Law. It is believed that, with the further liberalization of social concepts, patent applications for sex toys will no longer represent a special sector that falls under Article 5.1 of the Chinese Patent Law.