BY SIDDHARTH SONI
This article would try to explore two different sides of the debate: Is free medical testing of Covid-19 in India justified?
Free Medical testing of Covid-19 in India justified: –
In the words of the great economist Amartya Sen, ‘Economic Growth without investment in human development is unsustainable and unethical’.
The demand for the basis of free medical testing comes from the basic premise that health is a human right and should not be denied to anyone. The WHO Constitution (1946) envisions the highest attainable standard of health as a fundamental right of every human being. Amongst all the rights to which we are entitled, the right to health may be the most intersectional and crucial. The Right to health comes within the ambit of right to life and liberty under Article 21 of our Constitution, as is confirmed by various Indian judicial pronouncements such as Bandhua Mukti Morcha v. Union of India, State of Punjab and Ors. v. Ram Lubhaya Bagga, Paschim Bangal Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr and which further casts an obligation on states under Article 47 to provide medical aid to every person and to work for the welfare of the general public. While we are not in an ideal situation with Covid-19, diagnostic testing in today’s times is of utmost importance. In the absence of successful therapy or a vaccine, diagnostic testing becomes a valuable tool. Testing leads to quick identification of cases, quick treatment for those people and immediate isolation to prevent spread. Limited tests could cover the true toll of the disease in the world’s second most populous country. Lessons learned from SARS and Ebola show the importance of early detection. We have one health system for the poor, another for the middle class and another for the rich and the super-rich. What we need to do is to move from this fractured system towards a single healthcare system for everyone. The Hon’ble Supreme court in its own modified order of Shashank Deo Sudhi vs. Union of India, limited free testing only to Ayushman Bharat Yojana beneficiaries, which covers just a small fraction of poor people in the country. There’s a big chunk of people just above the poverty line that are also struggling and there are middle-class workers who have been laid off and can’t afford to pay for their families to get tested. In order to make free testing available to the public at large, private hospitals and laboratories should be made to participate in this fight against Covid-19. Considering the poor state of public health infrastructure, the service of the private sector is critical to combat Covid-19. In today’s times, the public interest must outweigh the private. The apex court seems to have ignored the fact that people are forced to depend on the private sector due to the poor public health infrastructure. The court also does not appear to have verified the rationale behind the cost (₹4,500) of the diagnostic test. It has also failed to look at the ways and means to implement its interim order and should have instead asked government to supply testing kits to the lab and formulate a fair compensation formula for the service by private labs.
Moving towards conclusion, India currently spends about 2% of the total taxes collected from people. This is four times less than what we spend on pensions and 5 times less than the money spent on the defence sector. So, the pandemic is still, in India, in an early stage, and it will play out. India should learn from its equivalent countries like Bangladesh, Sri Lanka, Singapore, South Korea, and Vietnam where the central governments fund for the covid-19 testing and is made available to the public for free.
Free Medical testing of Covid-19 in India is not justified: –
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The Patent and Trademark Office of the United States (also known as ‘USPTO’) has granted a patent for technology that could lead to the growth of the vaccine of COVID-19 in a matter of some months to a researcher at the Tel Aviv University in Israel.
[Illustrative: Magen David Adom medical team members, wearing protective gear, handle a coronavirus test from patients in Jerusalem, on April 17, 2020. (Olivier Fitoussi/Flash90)]
[Illustrative: Magen David Adom medical team members, wearing protective gear, handle a coronavirus test from patients in Jerusalem, on April 17, 2020. (Olivier Fitoussi/Flash90)]
The University said in a statement by announcing the development that, “The vaccine targets the novel coronavirus’s Achilles’ heel, its Receptor Binding Motif (RBM), a critical structure that enables the virus to bind to and infect a target cell.”
According to the statements by the Tel Aviv University, the vaccine under development would reconstruct the coronavirus’s RBM and by reconstruction of such RBM, the human body’s human system can learn how to block the real virus from cells when it enters the body.
The Times of Israel’s Hebrew sister site, Zman was informed by Professor Jonathan Gershoni, of the School of Molecular Cell Biology and Biotechnology at the university’s George S. Wise Faculty of Life Sciences, that there is already interest from pharmaceutical companies in the method he is developing. Prof. Gershoni has researched viruses and their interaction with human receptors for 35 years. He honed his skills during the outbreak of SARS in 2004 and MERS in 2012, both SARS and MERS belonging to the same family as of the COVID-19.
His team has developed the RBM-based method suing that research that Prof. Gershoni believes could be particularly effective. He said “In a short time, we will be able to adapt our approach as a platform for developing an innovative and effective vaccine.” He also said that it will require a pharmaceutical company to develop the technology, to take the patented method forward to produce a vaccine. After that is done, the vaccine would also be needed to go through the approval of Food and Drug Administration (FDA).
The novel Coronavirus has caused over 1,70,000 deaths worldwide.
Patent Claims for Blockchain USA Vs. India
The Future currency based on the new game-changer technology in several industries, with big corporations using it for various customer-friendly services such as cross-border payment systems, electronic shipping platforms, portable health recordsetc. Blockchains act as databases that store records for every transaction conducted and which are distributed, indestructible, decentralized, peer-to-peer and independently verifiable in nature. Blockchain patents can be likened to software patents since it involves usage of application software and cryptography. It has been argued that such inventions may not be patentable since most of these services merely take an old idea (the blockchain technology) and come up with a new use.
However, one must note the fact that patents for blockchain-based services are increasingly being granted across the world, especially USA and China, with many being granted to applications of blockchain technology in banking and financial sectors. The reasons for this trend are examined within the scope of this post by examining the current legal position in USA and India.
Patent Claim in United States of America
US Patent Act states under section 101 , the categories of inventions which are patentable as “new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement”. The judicially recognized exceptions to these categories are “abstract ideas, laws of nature and natural phenomena”. A two-step test was provided in US Supreme Court’s 2014 opinion in Alice v. CLS Bank(“Alice“) to determine the patent eligibility of computer-related inventions:
(i) determine whether the claims are directed to a patent-ineligible concept
(ii) determine whether the claim’s elements, considered both individually and as an ordered combination, contained an ‘inventive concept’ which transformed the nature of the claims into a patent-eligible application. Under the second step, claims which only contain instructions for ‘generic computer implementation’ or whose use is merely limited to ‘a particular technological environment’ would not be granted patent protection. It was stated that the claims must contain ‘additional features’ to ensure that abstract ideas are not monopolized and that such claims on ‘building blocks of human ingenuity’ must integrate them into ‘something more’.
It is finalized that there must be an improvement in the functioning of the computer or an improvement in any technology or technological field. While Alice certainly has stemmed the onslaught of patents granted to vague software patents, the decision has been questioned for not defining concepts such as ‘abstract ideas’ and ‘something more’.
Certain Federal Court decisions of 2016 and 2017 have elaborated on the application of the Alice test. Chief amongst them is the 2016 decision of Enfish, LLC v. Microsoft (“Enfish“), under examination of whether the claims are directed to an improvement to computer functionality versus being directed to an abstract idea ? must be done in the first step of the Alice test itself.
Court declare that the invention’s ability to run on general purpose computer did not invalidate the claims. The claims must hence focus on “specific asserted improvement in computer capabilities” and it should be ensured that the computer is not used merely as a tool. as per Federal Court decisions of 2018 follow the same line of reasoning.
Blockchain services must only be patented in USA if their claims are directed to improvements in computer functionality or underlying technology and not the blockchain technology or the blockchain-based service itself i.e., the ‘abstract idea’ which the service seeks to employ must not be patented.
India Patent : ‘per se’ Telefonaktiebolaget Lm Ericsson v. Intex Technologies
under Section 3(k) of the Patents Act , 1970 in India lists that ‘computer programmes, per se’ are patent-ineligible subject matter. Previously, there has been a lot of debate about the interpretation of the term ‘per se’. In 2015, the Delhi High Court in Telefonaktiebolaget Lm Ericsson v. Intex Technologies, stated that “any invention which has a technical contribution or has a technical effect and is not merely a computer program per se” is patentable. In order to reach this decision the Court relied on the ratio of the above-discussed Alice case i.e. the invention must contribute something more than an ‘abstract idea’ and the European Court’s 1986 Vicomdecision which states that an invention must result in a technical effect/contribution and declared these tests similar to each other. However, the 2016 CRI Guidelines created confusion when it stated ‘novel hardware’ was one of the requirements for patentability of computer-related inventions. The debate was then settled by the revised CRI Guidelines of 2017 where the ‘novel hardware’ requirement was removed and it was stated that the ‘substance’ of such claims have to be examined. Recent patent grants to computer related inventions by the Indian Patent Office indicate that such inventions are patentable under Section 3(k) if they provide technical solution to a technical problem by providing a practical application or an improved technical effect of the underlying software.
In India, there have been few patent applications for blockchain-based technologies by Barclays and Asadel Technologies.
Though the legal position in USA and India appear to be similar, there is one hurdle which Indian patent applications for blockchain-based services will face. The 2017 CRI Guidelines specifically state that ‘database’ is a ‘computer programme per se’ and hence it is excluded from patentability under Section 3(k). Blockchains, as has been discussed before, are databases for storing transactions. In my opinion, blockchain-based services will still be patentable in India since these Guidelines are not legally bindingand merely provide guidance to patent examiners. Also, since parallels can be drawn between software patents and blockchain patents, the patent application for a blockchain-based service should be granted as long as the claims are not directed at the blockchain technology itself and if it provides a ‘technical contribution’ or ‘a technical solution to a technological problem’.
blockchain is based on open-source client software and this feature enables new users to join existing systems and other companies to copy this technology and improve upon it. Many argue that granting patents to blockchain-based services aids patent trolls i.e., non-practicing entities who guard their monopoly by using these patents as weapons for stifling innovation by small developers. It is also said that patenting such services will excludecompanies from using such technology to develop further industrial applications and it may also lead to patent wars between big corporations. However, these issues are already being tackled with the help of initiatives such as Hyperledger (which aim at creating open-source blockchains and related applications), the creation of patent pools (making patented technologies available for cross-licensing to all members of such pools) and non-aggression agreements signed between companies (agreeing not to assert patents against small companies and engaging in litigation). under consideration must be given to the alarming trend of the grant of overbroad patents which only cover basic functionalities of blockchain. For instance, there was a recent report about the US Patents and Trademarks Office approving a patent filing for Northern Trust’s method of using blockchain technology i.e. smart contracts to form an immutable digital record of meetings. the claims clearly reveal that there is no improvement to computer functionality or underlying technology since they merely use the smart contract technology to employ an ‘abstract idea’ of creating digital meeting records. The Patent Office must, therefore, carefully examine the claims at hand. This is also questionable how such improvements are to be determined and what category of blockchain-based services can be granted patents need to be settled as per guideline of Patent Act . more details available on www.trademarkiso.com
