Research On Intellectual Property Protection Of China's Traditional Chinese Medicine

At present, intellectual property protection of traditional knowledge is the hot issue which academics concerns about,the Chinese medicine knowledge is an important composing part of the traditional knowledge in our country,therefore,it also causes great concern of scholars of intellectual property field in China.At present, intellectual property academics has made some achievement in the study of traditional knowledge,but generally speaking,the study of intellectual property protection of Traditional Chinese medicine is fairly insufficient,and the study achievement also can not meet the needs of social development.Now,the intellectual property system still has many shortcomings in the protection of Traditional Chinese medicine in our courtry,coupled with the inadequate understanding of the importance of intellectual property protection of Traditional Chinese medicine,which causes intellectual property of traditional Chinese to lose in a great quantity,the precious wealth of thousands of years is facing a tremendous impact.Therefore,further exploring and studying seriously to the intellectual property system and constructing the protection system of intellectual property of Traditional Chinese medicine,has great significance in Theory and Practice.This thesis discriminates the concept of Traditional Chinese medicine and other related concepts by drawing on the research achievements which the predecessors have done,discusses the basic theories of intellectual property protection of China's Traditional Chinese medicine.On the basis of the analysis of the status of the protection of the Traditional Chinese medicine,problems and their reasons in the existing framework of the intellectual property system,focuses on researching the protection system for the Traditional Chinese medicine in intellectual property on the aspects of protection of patent right,trademark right,trade secret and copyright.This thesis is composed of four parts.The first part analyzes the concept of Traditional Chinese medicine and other relative concepts,clarifies the relationship between the concepts,like traditional knowledge,traditional medicine and Traditional Chinese medicine,makes clear on the subject of study is an essential prerequisite in this thesis.Traditional knowledge is intellectual achievements based on invention and creation of tradition,is crystallization of the wisdom of mankind.Based on the theory of Traditional Chinese medicine,Traditional Chinese medicine is forming and developing Chinese Traditional medicine in the medical practice,is an important part of traditional knowledge.Traditional Chinese medicine is the centeral concept in this thesis.First,using "traditional" is to distinguish between modern Western medicine, and emprise the "traditional" and "authentic";Secondly,both in Traditional Chinese medicine theory or from our current form of development of practice of Traditional Chinese medicine,the "medicine " and " pharmaceuticals" is not completely separated.In modern society,the traditional knowledge including Traditional Chinese medicine plays an increasingly important role,it should be well protected.However, the fact is not like that.Characteristics of Traditional Chinese medicine such as tradition,historicity,Group's globality and regionalism is the biggest obstacle,which makes the intellectual property protection to be difficult to accommodate Traditional Chinese medicine enough.So,description of Characteristics of Traditional Chinese medicine emprises on differences of Traditional Chinese medicine and characteristics of the object of existing intellectual property,and to pave the way on constructing the theory of intellectual property protection of Traditional Chinese medicine,amending and improving the existing intellectual property system.The second part is of the theoretical basis of discussion of intellectual property protection of China's Traditional Chinese medicine. To master the concept,scope and characteristics of intellectual property is helpful for understanding the nature and effect of intellectual property system.To a certain extent,intellectual property system can protect Traditional Chinese medicine indirectly,but Traditional Chinese medicine can not be protected by the intellectual property system directly and strongly because Traditional Chinese medicine doesn't conform the elements required in intellectual property system completely.At the same time,intellectual property protection of Traditional Chinese medicine is necessary for pursuing fairness,preventing Traditional Chinese medicine resources from losing,promoting the usage of Traditional Chinese medicine,constructing the national cultural security strategy and making Traditional Chinese medicine move around the world.Therefore,intellectual property protection of Traditional Chinese medicine is imperative.It is possible to protect Traditional Chinese medicine in a broader scope by determining the scope of intellectual property protection of Traditional Chinese medicine.The third part is to study the status quo of the protection of the Traditional Chinese medicine,problems and their reasons.With the development of society and the consciousness of intellectual property protection of Traditional Chinese medicine is strengthened,to an extent,the legislative situation of intellectual property protection of Traditional Chinese medicine has been improved,the system framework of intellectual property protection of Traditional Chinese medicine has been established gradually and has played a certain role in the protection of intellectual property of Traditional Chinese medicine.However,at present,China's intellectual property system still has many shortcomings in the protection of Traditional Chinese medicine, there are many problems in the intellectual property protection of Traditional Chinese medicine.This article holds that there are three main reasons in these issues:the cultural differences between Chinese and Western,deficiencies of the existing intellectual property system and the weak awareness of the protection of intellectual property of Traditional Chinese medicine.Part IV is to explore ways to improve Traditional Chinese medicine in the protection of intellectual property system.Patent protection,trademark protection,trade secret protection and copyright protection are four main ways in the protection of China's Traditional Chinese medicine,and it is targetive and effective to explore ways to improve China's Traditional Chinese medicine in the protection of intellectual property system by these four ways.In the light of the existence of problems in the protection of intellectual property of Traditional Chinese medicine,it proposes the solution which is suitable and feasible for China's national conditions.In patent protection,we recommend the establishment of patent disclosure of the source system and the establishment of Traditional Chinese medicine database;in trademark protection,"geographical indications" system of trademark protection system is introduced,on the authentic Chinese herbal medicines for special protection;in the protection of commercial secrets,we propose to amend and improve relevant laws,properly expand the scope in which Traditional Chinese medicine may be protected by commercial secrets;in copyright protection,we should establish the Chinese medicine copyright collective management system,so as to improve our existing legal protection system of intellectual property rights of Chinese medicine and to form a more complete and more comprehensive protection system.