| The creative achievements of Chinese medicine can be hardly protected by contemporary intellectual property system, since the material foundation of commodity economy and industrialized mass production didn't existed when Chinese medicine theory came into being, its dialectic philosophy basis makes its right boundary hard to be defined, and that most of the Chinese medicine knowledge has entered public domain due to the absence of effective protecting measures. From the perspective of natural law philosophy, however, the creators of Chinese medicine continuously impose their labor and work on the external material world, by which the"two conversions"mentioned by John Locke have been completed. Thus, the justice basis for the creative work results"possessed"by its creators in Chinese medicine field has been formed. Whereas, due to the absence of a"social contract", it is difficult for the justified factual"possession"converted into a legally acknowledged stable right. Besides, analyzed from the economic aspect, the externality in the process of Chinese medicine inventive work is more serious than that of other information, thus, the risk of scarcity for Chinese medicine is also serious as the lack of incentive in creative activities under the circumstances without property protection. The current proprietorial regulation practice is deficient in the exclusion, transferability and completeness of the property right, which has negatively affected the incentive efficiency made by proprietorship.Review the research and practice made by international convention and internal legislation in the field of traditional medicine protection, the existing protection method could be divided into two classes. One is the minor adjustment under the frame of existing intellectual property system, such as the establishment of traditional knowledge (TK) database to destroy the novelty of patent application related to TK, and the other is institutional innovation and reconfiguration outside existing system, such as the benefits sharing system, disclosure of origin system,etc.. All of the explore and practice centers on the accumulative TK protection, and there is no legislation practice so far specially pointed to traditional medicine protection. Besides, as the deficiency in the completeness and exclusion of the property rights, it is difficult for these practices to realize its function to promotion the creation of incremental traditional medicine knowledge.On the one hand, China has presently made an effort to adapt the traditional Chinese medicine into the backgrounds of modern intellectual property system through its modernization project; on the other hand, China has attempted to build security barriers for the development of Chinese medicine industry by a series of administrative protection. However, as these regulations and measures have mainly targeted on industry protection and health administrative management, there are a lot of problems during the implementation process.As a part of intellectual property system, the intellectual property protection for Chinese medicine shouldn't deviate from the intellectual property essential goal to stimulate inventive activities. It is not its ultimate object to realize the traditional community's monopolization rights to TK. The specific institution construction should both acknowledge the collective rights the traditional community deserved for its accumulative Chinese medicine achievements, and acknowledge and protect the just rights and interests of the enterprises and other bodies who are the principle power for incremental Chinese medicine creation, in order to realize the dual aims of Chinese medicine intellectual property system to promote the incremental Chinese medicine inventive activities and advance the progress of Chinese medicine technology, as well as ensure the preservation and reasonable utilization of accumulative Chinese medicine knowledge, protecting the just rights and interests of the creators of accumulative Chinese medicine knowledge.
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