23 Mar 2020

Impact of national ban on E-cigarette patent applications. What’s the road ahead?

“E-cigarette”, the term that epitomizes the anti-hero of the smoke world, revolutionized the tobacco business when it entered the market in 2005. The idea of quitting tobacco by blowing aerosol filled clouds ringed like music to the ear of smokers across the world and the song has gained a lot of traction since then. But, the road for these battery-operated cigarettes has hit a speed-breaker if not a dead-end in India.

Well! talking about the subject, as soon as e-cigarettes entered the Indian market, the rampage of the tobacco and cigarette users started marching towards its direction, the reason for which can partially be attributed to social media/western influence and partly due to its wide availability of flavours (over 100 flavours) and in no time, this pen-shaped-vapor-blowing item was in their hands.

But, wait! have you heard of this phrase – “No addiction is encouraged via legal approach”. Yes! Despite being considered as a safe way of smoking and finding heaven in China, United States and European Countries, e-cig has been banned in India. And of course! with the imposed ban, it is of no use to get patents on the product in the country.

The world’s fifth largest economy to dwell a powerful hand at several categories of technology is none other than India, itself. And for the same reason, all the behemoth e-cig companies wanted to set shop in the country. Unfortunately, the ban on e-cigarettes has crushed the dreams of many e-cigarette manufacturers and online suppliers such as Juul Labs, Altria Group (formerly known as Philip Morris), British American Tobacco, Imperial Brands and RELX etc. Moreover, these companies have already invested a huge amount for filing their e-cig patent in India as a plan to market their products. And to their remorse, the item is already banned so, there is no point for further filing an application for its patent and launching the products.

After several court hearings and days being adjourned, the Delhi High-court imposed the restriction on import of e-cigarette inside the nation on 18th September 2019. Not only this, the court also made ademption of the existing product’s sale, manufacture or distribution of any form of Electronic Nicotine Delivery system (ENDS). This includes e-hookah, Vape, e-sheesha etc.

The big question for the government here is, -Will they refund the money of the companies whose patents have been awarded? And what about the applications which are still in the examination phase?

All of this is a situation of dilemma.

Let us understand the actual definition of the term E-cigarette. How did it come into existence? We will be taking a deeper look into the future of E-cigarette Patent Application in India after the nation imposed a ban on it.

Why E-cig?

The concept of the e-cigarette was introduced, when American Herbert A. Gilbert filed his first patent, i.e. “US3200819A” on e-cigarette on 14 April 1963. This invention of Herbert replaced the burning of tobacco and the paper with non-tobacco based cigarettes. And in return, it produced flavored smoke without/with nicotine.

Thus, it was accepted as the safest alternative. Later on, the idea of non-tobacco cigarettes took a larger shape in between 2003-2007, when Chinese pharmacist Hon Lik created the first electronic cigarette. The e-cigarette used piezoelectric heating elements to vaporize the liquid contained chemicals. After a huge success in china, e-cigarettes gained popularity via the internet in many countries. From there on, it caught the eye of the rest of the world and all the American big players started manufacturing and supplying these nicotine vaporizers.

An e-version of cigarettes are often comprised of three parts, i.e. Chargeable battery, Atomizer and cartridge of nicotine liquids. These liquids convert nicotine into vapor/ aerosol upon inhaling. When the smoker inhales, a pressure is created which in turn activates a sensor sending signal to the electric circuit. Further, the current is sent to the atomizer’s pump and heating element which then draws the liquid containing nicotine. And it results in generating the vapor as the heating elements been heated up. As a result, vapor gets inhaled by the smoker. The cartridge of the nicotine liquid consists of various flavors (US20150122277A1) depending upon the choice of the smoker and is detachably attached with e-cigarette.

Currently, e-cigarettes come in various shape and size for e.g. USB flash drives, pens, matchbox etc.

Patent filing trends in E-cigarettes in India

 

[Source: Derwent Innovation]

It’s obvious for any company which is procuring their product on a larger scale, that they would be launching it on a wider platform. And regarding this, they must acquire permission for patents granted in their jurisdiction. And accordingly, these companies conduct several scientific experiments and market research which cost them millions of dollars for their patents.

Now, let us have a glance at the below line graph.

From the above line graph, we get to acknowledge the pattern of the patent filing of E-cigarettes in India over time. Here, the thing to be kept in mind is that, India is not only the second largest consumer of tobacco in the world but it also provides great potential for the E-cigarettes market too. So, the tobacco companies saw a potential biggie in the form of Indian market and as evident from the graph, the filings in the country show a sharp spike since the initial filings in 2011. Till 2014, the patent filing trend seems to be constant but if we look at the patent filing trend from 2014-2016, we can observe that the uptake for E-cigarette patents has risen dramatically. Afterwards, the main challenge encountered by tobacco industries was the banned news of ENDS (Electronic Nicotine Delivery Systems) devices in India which became the source reason for fewer patents been filed in between 2016-2018 and hence coming to a halt in 2020.

Top Assignees of E-cig in India

[Source: Derwent Innovation]

Advancement in technology is a perpetual process. Companies file patents with the defensive approach in their mind to protect their technology. The monopolizing and control of trade and commerce was treated for their businesses. Companies which are highlighted in the bar graph adapted a similar approach to launch their product in India.

From the analysis of patent filing trend of E-cigarettes by top tobacco manufacturers, we have concluded some pin points.

It can be observed that British American Tobacco PLC is having the highest number of E-cigarettes patents filed in India, i.e. 71.

  • Similarly, Philip Morris International has also increased its E-cigarettes patent portfolio but relatively less than British American Tobacco PLC.
  • Juul announced to launch its ENDS device in India in January 2019, with 10 patents application in India.
  •  Indian Tobacco Company Limited (ITC LTD) and Godfrey Phillips India (GPI Ltd.) each owed 11 and 6 patents respectively being regulated in India

Conclusion

Looking further to what is coming ahead, individuals such as NGO and social workers started protesting for the prohibition of e-cigarrete. Not to forget, this stand was taken for other drugs, liquors, etc. as well. But this digital item was rising the addiction of several youths too. Economically, the sale of this product grew up to meet the demand of an ongoing crowd. Instead of slowing down, e-cigarrete created an era of more of depression, anxiety, and panic attacks in people. E-cigarrete acted as a relief to their pains and their blind eyes could not see the drowning health. In the similar line, justifying the ban, Nirmala Sitharaman (Finance Minister and Corporate Affairs) said, “E-cigarettes were promoted as a way to get people out of their smoking habits but reports have shown that many people are not using it as a weaning mechanism but are rather addicted to it.” But, its other side is very sad on which the government has kept silence, which are mentioned below-

  • As patents enhances the technology which are directly/indirectly associated with the product manufacture and launch. So, what will happen to the companies like Juul, Altria Group, British American Tobacco, Imperial Brands etc. who have a strong patent portfolio in India?
  • Can such other products be discontinued in India, which is a concern for many companies, due to which they may be afraid to file a patent in India?

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