From the legal protection of TCM intellectual property right

Wang Sainan Nanjing university of Chinese medicine

China's traditional Chinese medicine to

        Is passed from generation to generation in our country's traditional medicine of traditional Chinese medicine, Chinese medicine in China has very important significance and all mankind. However, we at the same time in the development and utilization of neglecting the level of protection in law. In recent years, with the domestic media have reported the intellectual property rights of Chinese medicine, Chinese medicine and law gradually realized the importance of enhancing the protection of intellectual property rights. However, for the problem of how to protect intellectual property of traditional Chinese medicine has always been controversial, in this paper, the current intellectual property protection and administrative law protection system of the two in Chinese traditional medicine intellectual property protection of the brief analysis of the current situation.

        Current main intellectual property protection system

        One is the patent system. Patent law is to protect the invention patent right, to encourage invention-creation, to promote the progress of science and technology and innovation of the floorboard of the legal norms. Its "inventions-creations" mean inventions, utility models and designs.

        At present, in Chinese medicine products in an application for a patent for invention, mainly for the application of the compound recipe preparations of Chinese medicine, which accounts for over 80% of the invention patent Chinese medicine products, the protection required for this invention is a traditional Chinese medicine (TCM) formula. For the extraction of effective components in natural medicinal plants, as a kind of compound patents are very few, because of the effective ingredients extracted from traditional Chinese medicine is very difficult, and medicinal herbs may contain hundreds, even thousands of compounds.

        Visible, the object of exploitation of the patent protection of traditional Chinese medicine is still very limited. In addition, it also has some obvious flaws. A long is the examination and approval of the patent protection period, usually for 3 years or so, so much general product life cycle; 2 it is the protection of the patent protection for short time, usually for 20 years, protection also couldn't catch up with the regulations on the protection of TCM variety; Three is Chinese traditional medicine to patent infringement, according to the existing detection methods, to analyze the Chinese traditional medicine compound preparation of the original formulation and manufacturing process, making it impossible to accurately determine whether infringement; Four is the patent law of our country crude medicine, such as Chinese traditional medicine the potion, decoction, one to protect the lack of specific operation rules, make the traditional Chinese medicine in China is very difficult to obtain patent protection in developed countries.

        Second, the trademark system. Trademark is an important part of the intellectual property of traditional Chinese medicine. In our country, trademark protection in addition to involving trademarks, service marks, certification marks or collective trademark (including geographical indications), etc. Trademark registration, for traditional Chinese medicine (TCM), ensure pharmaceutical quality, creating famous brand enterprises to improve competitiveness, etc. It is of great significance, especially well-known trademarks have become a trademark held enterprise huge intangible assets.

        At present, in the trademark registration and use of still exist many problems in practice, trademark registration obviously deficiencies of traditional Chinese medicine. And exclusive trademark protection for Chinese materia medica innovation protection is almost powerless, so in the whole traditional Chinese medicine of intellectual property protection system is in a very important position.

        Three is system of anti unfair competition. "Anti-unfair competition law" define the business secret is: not for public knowledge, can bring economic benefits to the obligee, is practical and security measures shall be taken by the holder of the technology information and economic information.

        Chinese traditional medicine production process is complex, technical strong, formula is complex and diverse, from the product it is difficult to use reverse engineering to launch the formulation and production technology of Chinese traditional medicine, therefore looked from technical characteristics in the field of traditional Chinese medicine, will be Chinese traditional medicine intellectual property protection and trade secret protection is an effective way of. In addition, the business secret protection way to one of the biggest advantages is no time limit. Many well-known trademarks in China, therefore, is to use its intellectual property rights, the protection of business secrets such as yunnan baiyao. Practice proves that as long as the proper protection measures of production enterprises, using traditional Chinese medicine of intellectual property and trade secret protection is very effective.

        But the protection methods, there are many defects, such as only airily mentioned some of the anti-unfair competition law, the maneuverability is yet to be perfect; Is not conducive to the spread of information technology; Protection is weak, can't fight against independent invention, etc.

Unfinished, full text links: http://www.cntcmvideo.com/zgzyyb/html/2013-03/18/content_71170.htm