Study Of China's Traditional Medicine Knowledge Protection

The definition of Chinese Traditional Medicine (including indigenous traditional medicinal knowledge in China) is one of the categories of traditional knowledge defined by WIPO. The nature of TK (For example, TK is already in the public domain, TK has always been an open treasure box for the unfettered appropriation to everybody. TK is usually a collective property of a society. This knowledge is transmitted from generation to generation. The present international IPR system has some conflicts towards TK in several aspects) is also the nature of CTM. Therefore, the present intellectual property right system does not provide the fully protection for CTM. In China, it feels some "confused" in the way of protecting CTM.The existing rules are falling behind the international trend to protect TK. The most important reason is that the national benefit within the CTM protection has been ignored in the academy and legislation practice till now.Based on the requirement of national benefit, we have summarized the related international agreements and attempts at protection of traditional medicine in aboard, also analyzed some famous cases related with traditional medicine. Combined with the present laws and regulations in China, this paper put forward to the following suggestions: under the National Authority administration and management, construct the national data centre, collect the resource of CTM and document the CTM. The data center would help check patent application based on CTM whether fulfill the requirements of novelty and inventive step when compared with the relevant prior art, also provides for promotion of conservation, sustainable use and documentation of CTM.In the trend of economical globalization, TK holders generally live in poor communities, whilst the TK users are commonly multinational companies with big wealth. Both sides' economical status has great disparity and it is an unbalanced game which is more in favor of the developed and rich countries. This paper suggested that: TK protection should not only be limited in field of private law, more public right should be introduced into the protection form. And State administration and management should be strengthened for TK protection. Only with well-ordered and equality legislation mechanism, the benefit sharing equality could be ensured. CTM holders (including natural person, juridical person or other organization) are the CTM intellectual property right reality object, while the central government is the legal right object. Central government as the reprehensive of the CTM holders has the legal rights and obligations. As the administrator of CTM, the Central government Authority will grant approvals for access to CTM, and indigenous knowledge protection, and ensure equitable sharing of benefits.With the development of society and technology, although with some uncertainty, the value of CTM will be mined and utilized more and more. So it is improper to enact the time limits for CTM protection. Up to now, there have no any time limits for TK protection either in the international agreements or in national legislation practices. So our national legislation should be consistent with that. In addition, in CTM related benefit sharing, the legislation should adopt the principle of "who hold who benefit", that is, it is the Chinese people should benefit from the laws.In a sense,protection of TK is striving for national benefit at the international stage.The international conflicts on the "biopiracy", and "the protecting form of TK" and "the benefit sharing mechanism" between developed and developing countries are still going on, while both developed and developing countries are trying to find the "co-win" solving ways.China should communicate deeply with other developing countries on the protection of traditional knowledge and take their legislation experience as reference. Most important of all, developing countries solidarity could achieve more benefit in TK right protection fights.