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7. Mr. Sai Deepak submits that the subject invention is not an electronic cigarette, the reliance on the News Paper Article dated 31st May, 2019, the ICMR White Paper dated 29th May, 2019 and the contents therein and the e-cigarette Prohibition Act is completely misplaced and unjustified.

8. Mr. Sai Deepak submits that the respondent has failed to appreciate that the term "serious prejudice" in Section 3(b) of the Patents Act, 1970 has to be read together with the rest of the provision which uses the words "primary or intended use". In support of his submissions, he has relied upon the judgment in the case of Balsinor Nagrik Co-op. Bank Ltd. Vs. Babubhai S. Pandya reported in AIR 1987 SC 849.

"Without prejudice to any other objections, prima facie it seems that the subject matter of amended claims 1-17 of the alleged invention discloses 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.
Hence the subject-matter of amended claims 1-17 as filed in the instant application prima facie development to a stimulant cigarette or e-cigarette and falls within the scope of clause (b) of section (3) of the Patents Act, 1970 (as amended). Therefore, the invention claimed in the said amended claims is not patentable.
Application fails to explain how to control the addition effect of the nicotine with controlled nicotine delivery, which is hazardous to the health and therefore it cannot be allowed as per Section 3(b) of IPA-1970.
The Indian Council of Medical Research (ICMR) has released a paper on May 31, 2019, titled "Vaping Could Put You on Path from Womb to Tomb": ICMR Recommends Ban on E-cigarettes May 31, 2019 has recommended a complete ban on e-cigarettes and other electronic nicotine delivery systems (ENDS) and said that it "adversely" affects almost all the human body systems with impact....from womb to tomb". The ICMR noted that e-cigarettes could, in fact increase the possibility of nonsmokers turning to smoking, "Use of ENDS or e- cigarettes by non-smokers can lead to nicotine addiction and regular smoking, "it said and added that several studies have found that youth using ENDS or e-cigarettes were "more likely to use regular cigarettes later". Passive smoke from e- cigarettes or vapes is also harmful, it said "Passive exposure to vapors during pregnancy can severely affect the health of both mother and foetus". ICMR recognizes ENDS are devices that heat a solution to create an aerosol, which also frequently contains flavours, usually dissolved into propylene glycol and glycerin. There are various types of ENDS devices like e-cigarettes, heat-not-burn devices, vape, e-sheesha, e-nicotine flavored hookah among others. The most common type is an e-cigarette that produces an aerosolized mixture of the flavored liquids and nicotine, which is inhaled by the user. The release of the white paper comes amid a raging debate over the harm reduction aspects of ENDS with some organizations claiming that they held in smoking cessation and are less harmful alternatives to traditional cigarettes. Professor K Srinath Reddy, President, Public Health Foundation of India and a renowned cardiologist who chaired the ICMR expert group for this white paper said that the tobacco consumption, especially cigarette smoking has shown a decline in India in recent years, in response to several tobacco control measures that has already been initiated. "Thus, at this juncture, marketing of product like ENDS or e- cigarettes, with unproven benefit and high potential harm from addiction and health risks, is unwarranted as a tobacco control measure"."

Explanation.--For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy."

31. In the impugned order, the respondent has cited that the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transport, Sale, Distribution, Storage and Advertisement) Act, 2019 (e- cigarette Prohibition Act) which is statute regulating and banning electronic cigarettes.