Study On Patent Infringement For Traditional Chinese Medicine Complex Descriptions

The patent infringement of traditional Chinese medicine complex description(TCMCD) has been the difficulties in judicial practice. Because it involves not onlythe legal dimension, but also the technical problem. The social value of patentinfringement judgment is to balance the interests of the patentee and the public.TCMCD is the treasure of our country, to protect our resources against arbitraryviolations is inevitable by maintaining the interests of the TCMCD patentee in thecontext of opening up to the world. The reality is: the imperfect law in judging thepatent infringement causes the Courts don’t have the explicit rules to judge and dealwith the TCMCD patent infringement disputes, all over the Court’s scale of differentreferee result varies, also makes it difficult to guarantee judicial justice. This article isintended to make some superficial views through the analysis of legal problems raisedby a case.This paper is divided into four parts，with the main theme of each part as follow：The first part is to briefly analyze the case and summary controversial focuses ofthe case, causing the proposed consideration of the law, namely: What is the judgmentstandards of TCMCD patent licensing, How to determine extent of TCMCD patentprotection and How to affirm the TCMCD patent infringement.The second part is to set out the judgment standards of TCMCD patent licensing.Containing three aspects, the first aspect is to elaborate patent conditions of TCMCD,it must have a novelty, creativity and practicality; The second aspect is to discussissues related to TCMCD in patent invalidation procedures; The third aspect is toanalyze the specific application of TCMCD patent licensing standards in the case, inorder to further know the standards of TCMCD patent licensing．The third part is to discuss the scope of TCMCD patent protection. First of all,introduce the basis on extent of TCMCD patent protection.Secondly, discuss ways todetermine the scope of TCM patent protection, concretely analyze the extent ofTCMCD patent protection whose technical characteristics are qualified bypharmaceutical raw materials, preparation methods, new uses and new formulations;Finally, analyze the scope of patent protection in this case.The fourth part is to discuss the judgment standards of TCMCD patentinfringement. Firstly, clear legal characteristics of patent infringement, it’s a valid patent, patent infringement and the principle of liability without fault; Secondly,analyze the object of TCMCD patent infringement judgment; Thirdly, describemethods for TCMCD patent infringement judgment,namely three-step methods; Then,discuss the principles (general principles and specific principles) of TCMCD patentinfringement judgment, Combined with the characteristics of TCMCD, and focus onthe special principles of TCMCD patent infringement judgment; Finally, using theabove judgment principles and methods to analyze the case, and conclude that WanGao company doesn’t infringe You Ta company’s patent.The conclusion section of this article is to summarize the above analysis. Duringthe patent licensing of TCMCD patents, three of the review should be applied flexiblybased on the characteristics of TCMCD. This section also summarizes the generalprinciples and specific principles of TCMCD patent infringement judgment, and givesthe order of application of these principles.Hope our country will establish systemof TCM patent that suits our national conditions as soon as possible.