Intellectual Property Protection To The Traditional Chinese Medicine

China is the original birthplace of traditional Chinese medicine. It owns Chinese individual characteristics and should be the easiest area for us to apply the intellectual property at today when everybody is emphasizing the intellectual property. However, following the opening up to the outside and Chinese entry to WTO, we met a series of problems on protection of intellectual property to Chinese medicine at home and abroad. In China, our intellectual property protection consciousness is still weak, the legal system still needs to be improved; At the abroad countries, the foreign companies are taking all their means to compete to register the patent, to grab the traditional Chinese medicine recipes, rename it and launch it into the markets again. All of these left us with a sever situation on intellectual property protection issues to Chinese traditional medicine. The author start this article from the concept of traditional Chinese medicine's intellectual property and the areas concerned to be protected, it illustrated the difficult points on its protection, analyzed the current situation on the mechanism of intellectual property to traditional Chinese medicine and the existing problems in China, proposed the possible counter measures on protection work to the intellectual property rights to traditional Chinese medicine.Firstly, this article introduced the concept of intellectual property to traditional Chinese medicine and the relevant areas that the intellectual property could be protected. Traditional Chinese medicine should be composed by two general categories: Chinese traditional medicine and Chinese material medicine. The areas concerned to be protected by the intellectual property on Chinese medicine including 8main parts, like the production, recipe and ingredient of Chinese material medicine, technique of Chinese medicines making, technique of Chinese medicine engineering, technique on Chinese medicine quality control and guarantee, method of Chinese medicine diagnosis, documents of Chinese medicine and the special signs and mark of Chinese medicine, etc.Secondly, this article explained the main form that currently can be adopted on the intellectual property rights protection to traditional Chinese medicine. In China, we have some protection measures in general, like Patent Law, Trademark Law, Copyright Law, etc; the protection on the line items of Chinese material medicine, but this protection is only valid in China, it cannot be integrated internationally; as well as the other comprehensive protection, like the relevant terms and regulation at the General Rules of Civil Law. The main form adopted in foreign countries on intellectual property protection is: Intellectual Property Agreement relevant to Trade, Global Convention on Plant New Breed Protection, Convention on Biology Varieties. This part of the article reviewed the main laws and legal regulations currently available and relevant to intellectual property protection at home and abroad, to see which area of traditional Chinese medicine being covered. Thirdly, this article analyzed the current situation in China and the existing problems on intellectual property rights protection. The article made its analysis from the following six aspects: the protection on Patent Right, Trademark, Business Confidentiality, Copyright, Administration and the aspects that current Intellectual Property Rights cannot be protected.Meanwhile, you could know about some disadvantages existing at our intellectual property protection in China. From the aspect of patent protection, the negative points can be seen on: the numbers of patent application is less, the special diagnostic methods in tradition Chinese medicine are not enlisted at the protection scope of Patent Law, the valid period of patent protection is not fit for the requirement from Chinese medicine protection. From the aspect of trademark protection, the protection consciousness is weak, no difference between the name of medicine itself and its trademark, trademark registration work being neglected for the native medicine. From the aspect of business confidentiality, the ingredients and the prescription being leaked and not confidential any more. From the aspect of copyright, since the valid period of patent protection for the traditional classic medicine documents is beyond, resulted foreign countries can use them free of charge and take large amount of the recipes out of it. From the aspect of administration, it pointed out the confliction between the line items protection and patent protection to the Chinese medicine. As well, at this part of the article, it tell that the current intellectual property cannot give a full and valid protection to Chinese medicine, such as: Diagnosis Method, Acupuncture and Massage, Secret and Proved Recipes from the non-governmental sources.The fourth part of this article tell the main reasons why we've got a weak consciousness on intellectual property rights protection in China: 1. No enough attention being paid on patent rights protection, no enough understanding to the specific regulation of intellectual property; 2. Current legal system and law regulations are incomplete, resulted it's hard to do a thorough protection to our traditional Chinese medicine. Because our intellectual property system was set up referred to the mechanism of western intellectual property, what they protect is the privacy, instead of the public right of the nation, region, ethnic. The article illustrated the existing problems at the protection of patent rights, trademark, business confidentiality and copyright. It's difficult to apply a patent for the effective ingredients for the Chinese medicine because it's not easy to do a judgment for its composition; further the publicized traditional medicine is not new any more, the patent protection period is too short, etc. all of these element deferred the patent protection work to Chinese medicine. From the aspect of trademark protection, there has no standardized operation on Chinese medicine's Geography Mark. From business confidentiality aspecit, it has the conflicts on the protection between the patent and business secrets. On the aspect of copyright protection, since it has no time effectiveness on the medical documents that leaked to the civilian, it's hard to judge the belongs of those documents.Finally, the author put forward several proposals on the intellectual property rights protection to Chinese traditional medicine: 1. Strengthen the awareness and consciousness to intellectual property protection; 2. Take full use of the current intellectual property regulation to protect our traditional Chinese medicine, to be more specific is to complete patent system, protect traditional Chinese medicine, to protect traditional Chinese medicine and Chinese material medicine via the business confidentiality mechanism, to protect Chinese medicine via trademark legal system, to establish collective management system for Chinese medicine and Chinese material medicine and protect the traditional medical documents; 3. Standardize the management and build up relevant law and legal regulations to solve the problems occurred, esp. to establish a set of standardized system on traditional Chinese medicine as the basic strut to this career's development; 4. Establish special legislative regulation for traditional Chinese medicine, recommend to work out Traditional Chinese Medicine Protection Law; 5. Look for broad cooperation worldwide, to strengthen the protection from international law.At the final part, the author conclude and emphasize again that the intellectual property protection to Chinese medicine should be established on a comprehensive protection way, only with the way like this, we could build up an integrated intellectual property rights protection system.