Harvard Law School
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association .
Licensed to practice in California, Maryland, Washington D.C., & Georgia
A cigarette burns tobacco. There are two things wrong with burning tobacco. First, burning produces smoke, which contains a high level of toxins. Second, tobacco (and the smoke from burning tobacco) contains nicotine, which is addictive. An e cigarette does not burn tobacco or anything else. Instead, it vaporizes liquid, called e liquid in a device known as a vape mod. The e liquid usually consists of propylene glycol and glycerin (about 95%), water, nicotine, and flavorings. Using an e cigarette or a Vape Mod is called vaping.
The e cigarette was invented and patented by an American in 1963. However, cigarettes were still fashionable, the device was not commercially successful, and the patent expired. A similar device was invented and patented in China in 2003. E cigarettes or Vape Mods were introduced in the United States in 2007. Most e cigarettes are manufactured in China, without regard to the 2003 patent. Vaping is booming.
The first e cigarettes looked like cigarettes. Modern vape mods come in various shapes and sizes, bearing little resemblance to cigarettes. The generic term for modern e cigarette devices is Electronic Nicotine Delivery Systems (“ENDS”).
Vaping with ENDS generally produces only a fraction of the nicotine produced by smoking cigarettes. On the other hand, the toxins created by vaporizing propylene glycol and glycerin are a major public health concern. Research suggests that inhaling the toxins of the E Liquid raises the risk of cardio-vascular disease. Therefore e liquids without nicotine, which are apparently rare, are also suspect.
Vape mods are marketed as a heathfull alternative to cigarettes because of their lower nicotine production. For the same reason they are also marketed as an aid to stop smoking cigarettes. However, there is evidence that using e cigarettes leads to smoking, and that vape mod users who are already smokers continue to smoke. Nicotine is a potent drug.
A handful of major tobacco companies control the huge worldwide market for cigarettes. The owners of the 2003 patent have engaged in major litigation with large ENDS manufacturers to compel them to pay royalties. This has done nothing to stop the proliferation of small ENDS manufacturers and suppliers of e liquids, and the odds are that the 2003 patent is invalid.
In response, the major tobacco companies are entering the ENDS and e liquid businesses themselves. Perhaps more importantly, in 2016 they succeeded in convincing the FDA to adopt burdensome regulations on the sale of e cigarettes and e liquids, in the expectation that compliance costs will drive smaller competitors out of the industry, so that they will eventually control e cigarettes and e liquid just as they control cigarettes. If patents won’t work, regulation will.
In the meantime, at least one small vape mod manufacturer has sued to prevent others from copying its products, based on alleged ownership of the products’ designs. They have failed to recognize that “ownership” of vape mod designs cannot prevent knockoffs of their products unless they have patent rights, which they do not have.
Whatever the pros and cons of e cigarettes, those who believe big government and big business are in league to crush the little guys may soon have another example to cite.
Stanley D. Prowse is a Civil Litigation Attorney practicing in the greater San Diego area.
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