| Traditional Chinese medicine is a great contribution of the Chinese nation to the world’s human health.It embodies the wisdom and painstaking efforts of the Chinese people for thousands of years.China is a traditional Chinese medicine resources and Chinese medicine in the country of origin,there are varieties of traditional Chinese medicines,the vast rich planting base,Chinese herbal medicine and ancient classic multitude unilateral unique treatment concept.However,due to limited technology,traditional Chinese medicine patent right in China is protected by high quality,a large number of Chinese medicine resources by developed countries registered patents into "western medicine" anti Chinese market into high priced sales,making huge profits of patent.China’s patent protection of traditional Chinese medicine is facing an embarrassing situation,through the design and construction of China’s national conditions,in line with the characteristics of traditional Chinese medicine legislation to effectively protect the patent system.This paper is divided into three parts: introduction,text and conclusion.The text is composed of the following three parts.In the first part,firstly from the narrow angle in pharmaceutical and intellectual property law broadly connotation of traditional Chinese medicine are defined,the essential difference between traditional Chinese medicine with respect to the unique characteristics of Western medicine chemicals;followed by China on various protection model of traditional Chinese medicine by comparing the patent protection to me Chinese medicine is currently recognized as the strongest protection mode of protection,exclusive the strongest conclusion,explores the legitimacy of the implementation of the protection of traditional Chinese medicine patent right in China;then this paper reviews the history of the legislation of Chinese patent right protection system of our country,and the status of patent application were introduced,discussed the legislative defects and obstacles of traditional Chinese medicine patent protection in our country,discusses the defects and causes analysis of existing legislation on Chinese patent rightprotection in China.Pointed out that the full disclosure principles stipulated in the existing patent law and patent review about the obstacles of novelty,creativity and practicality of the definition standard of Chinese medicine patent protection in our country,the conflicts existing Chinese administrative protection mode and patent protection mode of legislation on the obstacles to our country medicine patent protection,and the conflict between China’s patent protection regulations and Chinese medicine characteristics exist from the perspective of the in-depth analysis of the patent infringement rights protection barriers lead to fuzzy boundary identification difficult.The second part is the comparison research of the United States,Germany,Thailand,Japan,Chinese medicine herbs or herbal medicine patent protection and patent protection,from the analysis on the several countries in the field of protection of the patent system of the traditional medicine and practice experience.The third part on the basis of the two parts,through the analysis of obstacles to China’s existing Chinese medicine patent protection system in the legislation,and to protect the rights from the advanced countries traditional medicine patent legislation experience of the perfection of the legislative system to put forward some suggestions on improving Chinese medicine patent protection in China.The author puts forward the following countermeasures: to straighten out the legislative system of protection of traditional Chinese medicine patent in China,the protection of the two laws and regulations to solve the conflict of administrative protection of traditional Chinese medicine and patent issues;and the introduction of the system of prior informed consent system of the traditional sources of knowledge disclosure,taking advantage of developing traditional Chinese medicine resources,make up for the disadvantages of technology,thus developed countries to curb free use of traditional Chinese medicine resources,registered TCM patent "biopiracy" status;according to the characteristics of the traditional Chinese medicine oneself to fine The perfect examination standard of Chinese invention patent on the "three",namely Chinese medicine patent adjusting and relaxing the novelty,creativity and practicality;secret censorship provisions to prevent information leakage caused by traditional Chinese medicine patent infringement imitation;prolong the duration of patent medicine to improve business and personal patent application enthusiasm,conducive to the sound development ofthe right protection the Chinese medicine patent;further refinement of traditional Chinese medicine patent infringement boundaries,perfecting the definition of legislative system of traditional Chinese medicine tort;link mechanism of patent protection of traditional Chinese medicine,China’s food and Drug Administration(SFDA)and the national patent bureau(SIPO)of the two administrative departments of seamless,patent search and the protection is conducive to traditional Chinese medicine.In this paper,we discuss the legislative obstacles and suggestions for the protection of the patent right of traditional Chinese medicine in our country,which involves the complex study of the two systems of law and pharmacy.The article in accordance with the general: combing the history of the introduction of the status quo-find the problem-Analysis of the causes-to learn from the advanced experience-to give advice to improve the context of the proposed countermeasures are discussed.This paper adopts the legislative theory with practice,in order to ensure the logical and normative text writing,the author mainly uses the following research methods are:(a)the interdisciplinary field of composite research method: This paper relates to the pharmacy,and intellectual property law,civil law and other disciplines of knowledge the author,by intellectual property law research,interdisciplinary research methods supplemented by knowledge of medicine.(two)the literature analysis method: the author read a large number of books and reference books of laws and regulations,network information,authoritative core periodicals and excellent doctoral dissertations and other detailed information,to expand the refinement based on existing research results,to explore the improvement of legislation system of TCM patent protection in China’s countermeasures.(three)comparative study method:Based on the United States,Thailand,Japan,Germany and the world the representative countries of the legal system of traditional medicine patent protection are summarized,analysis,comparative study and associated with the corresponding legal system,summed up some countries in traditional medicine(or herbal medicine)of patent the protection of the right of legislation,and select the advanced experience which accord with the situation of our country characteristics as a reference to improve our country’s legislation.(four): This paper begins with the historicalresearch method for traditional Chinese medicine patent protection in China’s legislative history combing and summarized,traces the legislative background of law in each stage of our country and the design considerations,the legislative process of the traditional Chinese medicine patent protection evolution are summarized,for the analysis of the legislative defects of the causes and the suggestions to pave the way for. |
