An Analysis On The Legal Protection Of The Intellectual Property Of The Chinese Medicine

According to the World Trade Organization, the World Intellectual Property Organization and the legislation definition of foreign countries,"traditional knowledge"includes folk literature and art, as well as local traditional medicine. Andean pact Organization founded by developing countries also considers"traditional knowledge"as the object of intellectual property protection. Chinese medicine is the treasure of Chinese people. We have great advantage in resource, market and human resource. Chinese medicine is not only effective in curing diseases, but also has great potential in market. Moreover, Chinese medicine is the most likely area that could obtain self-owned intellectual property rights and one of the few advantageous areas in the world for China. However, the widely-recognized TRIPs could hardly protect Chinese medicine because the medicine protection section in this agreement is aimed at the protection of chemical medicine, but not the protection of crude herbal medicine, there is no concrete operational procedure, which leads to the exploitation, assimilation and even the gain of patent of Chinese medicine by developed countries. In spite of the fact that Chinese government lays great emphasis on the protection of Chinese medicine, there is a saying:"sowed in China, blossomed in Korea, reaped in Japan, harvested in Europe and America", which shows the seriousness of the problem. China has just started in the protection of medicine, in contrast, developed countries has already developed a system for the protection of medicine, but this system is designed specially for chemical medicine that is not compatible with Chinese medicine. On the other hand, lots of companies in developed countries copy Chinese medicine with advanced technology that drains our medicine resource. What concerns us more is that lots of developed countries even exploit our Chinese medicine gene resource, which makes it more difficult to protect intellectual property rights of Chinese medicine. At the same time, foreign companies also take advantage of the flaws in the management of intellectual property rights to get huge profit. As a result of the backward conscience of medical workers and industries in China, there are lots of incidents about the infringement of intellectual property rights. Our traditional idea about kindness to others doesn't provide protection to our treasure. Therefore, we must use the tool of law to protect our treasure.This thesis is divided into three parts:Part one is mainly about the necessity and major forms of the legal protection of Chinese medicine. This part firstly explains the status quo of the legal protection of Chinese medicine. Chinese medicine is a promising industry in 21st century. More and more people support Chinese medicine because of its environment-friendliness. With our entry into WTO, Chinese medicine is faced with great challenges, reflected by the fact that a lot of foreign enterprises take advantage of the insufficiency of legal protection in China to steal the patent of Chinese medicine, which causes great loss in China; Then this part discusses the necessity of legal protection of Chinese medicine in China. In the first place, Chinese medicine could help Chinese economy develop rapidly. Biology science is crucial to the economy development in the 21st century. With the rich medical resources in China, if we could take advantage of this opportunity, Chinese medicine could help our economy a lot. Then, the effective protection of Chinese medicine could prevent copy. One of the major characteristics in patent system is the revelation of information concerned in advance. In this way, others could get the information conveniently to avoid doing research in vain. Thirdly, the effective protection of Chinese medicine could prevent foreign enterprises from stealing the Chinese medicine patent. Lastly, the effective protection of Chinese medicine could encourage the enterprises to develop new medicine.Part two explains the flaws in the Chinese medicine legal protection. and patent. Firstly, the problems in the Patent Law, including the westernization of Chinese medicine protection, the ineffiency of recognizing the infringement and the "three characters" of Chinese medicine and the problem of protection period. Secondly, the problems in Trademark Law, including weak consciousness of trademark protection, small number of trademarks and improper relationship between the name of the medicine and the trademark. Part three, others. This part mainly discusses the fact that developed countries use technical barriers to prevent Chinese medicine from entering their market by setting up technical regulations.Part three gives some suggestions on the legal protection of the Chinese medicine. Firstly, to perfect the Patent Law concerning Chinese medicine; Secondly, to perfect the Trademark Law concerning Chinese medicine; Thirdly, to perfect the Copyright Law concerning Chinese medicine; Lastly, others, including proper relationship between administrative protection and patent protection and the setup of technical standard by China.