The Applicable Rules Of Law Relating To Protection Of The Rights Of The Scope Of The Invention In The Patent Application Process In Traditional Chinese Medicine

The purpose of the establishment of regulations on patent is to protect the lawful right of patentees, to encourage innovation and invention and its appliance, to enhance innovation abilities, all in all, to promote the development of science-technology and social economy. Among these regulations, the protection scope is highly important for a patent, which concerning the bilateral right of inventors and the whole society. So far, it's crucial that, on one side, inventor requiring a reasonable protection scope, and, on the other side, authority reviewing and approving it with a fair, precise and legal sense, which demanding a deep understand and precise conduct of the regulations on protection scope for the authority.Meanwhile, some special circumstances in TCM field, which leading to many conflicts in the application of regulations, could cause not only the possibility of approval a unsuitable protection scope, but also fundamentally impact on identification of patent infringement in the judicial phase, and, at large, undermining the regulation spirit of promotion and protection of invention and innovation.Objects:the paper is to discuss an appropriate understanding and application of the regulations on patent which about protection scope and writing in the application procedure of TCM patents. To give application suggestions on special circumstances concerning TCM patents. The regulations above mentioned are the Article 26 paragraph 4 of the Patent Law of the People's Republic of China and the Article 20 paragraph 2 of the Implementing Regulations of the Patent Law.Methods:the study methods include literature study and case study. Firstly, concluding the constitution of application in theoretical studies by analyzing literatures concerned. Secondly, concluding the application situation and conflicts by reviewing Office Action and Office decision documents concerned in the application procedure of the granted TCM patents during the last 3 years in Beijing Treagle(T. Z. T. Y.) intellectual property agent Ltd.. And then, submitting the conflicts to specialists for further discussion. At last, integrating typical cases, analyzing and concluding the regulations constitution and application suggestions for the appropriate application in the application procedure of TCM patents.Conclusion:the paper gives a preliminary study on the appropriate application of the Article 26 paragraph 4 of the Patent Law and the Article 20 paragraph 2 of the Implementing Regulations of the Patent Law in the application procedure of TCM patents, with the integration of 31 typical cases. And some suggestions are put forward concerning special circumstances in TCM patents, which can provide reference for the application of TCM patents.This study shows that, for the Article 26 paragraph 4 of the Patent Law and the Article 20 paragraph 2 of the Implementing Regulations of the Patent Law, the constitutions are not special and can be equally applicable in the field of Chinese Medicine. However, Chinese Medicine has its specificity, manifested in the technology programs of its products, methods and uses. Therefore, the application of the two Articles could only be applied correctly and reasonably in combination with the technical characteristics of Chinese Medicine, in particular, to stand in the field of technical personnel. So that, the purpose of protecting patent rights and encouraging invention could be achieved.