IPR Protection For Traditional Chinese Medicine Needed

On April 1st, IP Dragon wrote about how to protect Traditional Chinese Medicine, see here. And it was certainly not an April Fool's Day joke. But a lot in this fields need to be done. Exactly that is pointed out by the State Council (the highest legislative body) which came up (April 21st, 2009) with "Some Opinions of the State Council on Supporting and Promoting the Development of the Traditional Chinese Medicine Industry, No. 22, 2009."

Relevant passages are:

IV. Promoting the TCM inheritance and innovation

ii. (..) You should strengthen the support and protection of famous brands, famous trademarks in the TCM industry; optimize the export structure of TCM products, enhance the added value of export TCM products, and support TCM enterprise to expand the global market.

iv. Strengthening the TCM legal system construction and the intellectual property protection: we should actively promote the legislation process of TCM, improve laws and regulations, strengthen TCM intellectual property protection and utilization, improve the TCM patent examination standards and the TCM species protection system, study and formulate a TCM traditional knowledge protection inventory, and gradually build a special TCM traditional knowledge protection system; and should strengthen the origin protection of good and genuine TCM materials, and transform the advantage of good and genuine medicine materials into the intellectual property advantage.

v. Strengthening the management of the TCM industry: the regions and departments concerned should strengthen the unified planning of the TCM industry, and manage the TCM in accordance with its characteristics and rules; should promote the TCM informationisation construction, build and improve a comprehensive statistical system; should promote the TCM standardization construction, build a standard system, and promote the transformation of China’s TCM standards into international standards; should rigidly supervise TCM law enforcement, heavily strike the acts of illegal medical practice in the name of counterfeit TCM, releasing false or illegal TCM advertisements, manufacturing or selling counterfeit or inferior TCM; and should strengthen the construction of local TCM management agencies, reinforce their management functions and enhance their management levels.

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Green Gold Rush: The Interview, The Movie

Laurent Gaberell told me that he made a video documentary called Green Gold Rush about bioprospecting (the exploration of biodiversity for commercially valuable genetic and bio-chemical resources) and indigenous peoples. See the video here.

The Interview
IP Dragon: Is traditional knowledge what the developed world wanted to give (as some would say "small change") to the developing world in exchange for their enforcement of the economically more important intellectual property rights of copyrights, trademarks and patents?
Laurent Gaberell: "The rhetoric of biopiracy has emerged as a political discourse and strategy to counter the piracy rhetoric that MNCs used to justify the enforcement of stronger and stronger intellectual property rights in the geopolitical South. To sum up, Third World countries were saying "you call us the thief for stealing your intellectual property when in reality you are the thiefs you steal our intellectual property", as Martin Khor well puts it in the movie. This biopiracy rhetoric has proven very effective in putting the issues on the top of the political agenda. Yet it has its dangers too. And one of them is the one you refer too. If we are speaking about two problems of piracy, then why not make a deal: "small changes" in the IP system such as disclosure of origin requirements againts enforcement of strong standards in the Third World to protect the IP assets of developed countries. It is a dangerous deal because I am really not sure it would benefit developing countries and moreover these are very diferent problems. On one side you have the patenting of innovations that originated in the geopolitical South while on the other side you have the use of IP protected innovations produced by MNCs. Third World countries are not appropriaiting the innovations of MNCs through IP, they are using it. But the North not only copies the innovations of the South but also appropriates it through IP. The problem is very different. I think Third World countries would be very ill advised to make such a deal. They have the legitimacy to ask for both the protection of their resources and knowledge, and the right to copy IP protected assets of the North in the name of their needs for development."

IP Dragon: Why wasn't a representative of the People's Republic of China included in the documentary?
Laurent Gaberell: "No representative of the People's Republic of China appears in the movie for the simple reason that there were no indigenous peoples delegates or representants of minorities of China present at the IGC. And the idea of the movie was to give an opportunity to indigenous peoples' delegates of various part of the world to share their experiences and perspectives. It was not the intention of the documentary to interview state representants or members of official delegations. So it is not a discriminitation against China, it is just that no representatives of any country was interviewed for this movie."

IP Dragon: Why is the movie relevant for China?
Laurent Gaberell: "For the importance of traditional medicinal knowledge there. China might not be part of the most megadiverse countries of the world, but it has accumulated an impressive quantitiy of knowledge about the medicinal properties of its biological resources, and that knowledge is of very strategic and economic importance in the context of the biotech revolution. So the question that the movie asks for Bolivia is also relevant for China: how not only to protect our knowledge and innovations of being appropriated but also how to use it and develop it in a way that is really beneficial to the people and to the country."

IP Dragon: Can you tell anything China-related in relation to this movie?
Laurent Gaberell: "I have read about the strategy that China is currently experimenting to protect its TK, namely the patenting of this knowledge, especially its traditional medicinal knowledge and formulations. The advantage of this strategy is that the patents can then be enforced through WIPO in countries like the US or in Europe, something a national sui generis system is currently not able to do. What is not clear to me however is who owns the patent. The State? Chinese companies? Individuals? Traditional comunities?"

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How to Protect Traditional Chinese Medicine?

Recently I have been corresponding about Traditional Chinese Medicine (TCM) and which intellectual property rights (IPR) can protect them. I just read Mr or Ms Jia's interesting paper on TCM (Jia Q., The World Health Organization, 'Traditional Chinese Medicine Could Make "Health for One" [Come] True', 2006) which includes a very interesting chapter on intellectual property rights:

4.3. No good methods have been developed to protect traditional knowledge starting at page 64. Jia gives a discription of 10 different methods to protect TCM (I have numbered the list and wrote the IPR in bold):

1. "Trade secret: It has a long history of thousands of years in China and it is one of the important protective methods.

2. National secret: It is one of the most effective methods of all protections now that only finite TCM products enjoy such protection like Yunnan Baiyao capsule.

3. Trademark protection: It is the weak link which TCM industry is liable to be trespassed on. For example, trademark of the Beijing Tongrentang Co. Ltd, which is one of the oldest and well-known corporations of TCM, was even enrolled by a Japanese company in 1983.

4. Geographical indication: It is a kind of protection aimed mainly at trueborn medicinal herbs or the products made from them.

5. Patent protection: It is the strongest methods to protect inventions. But patent system isn’t considered suitable for traditional medicine except those innovative products.

6. Protection and inspection of new medicine: In 2002, administrative protection of new medicine was abolished and inspective duration for new medicine of 5 years, in which the same produces can’t be manufactured as well as imported by other corporations was set up.

7. Protection of Chinese medicines: There novelty is not required and the protective limit is from 30 to 7 years. The protective species have reached to 1668 in which 12 kinds of species belong to the first class of protection.

8. Copyright system: It contains books, articles, prescriptions and instructions.

9. New herb species: It is often developed by cultivation or domesticated from wild species which are newly found.

10. Frontier protection of the intellectual property: It could be applied to the customhouse through which the tortious products export or import."

Ad 5. As Jia already points out, TCM are not well suited to the patent system. A patent needs to be novel, innovative and have practical applicability. By definition TCM are traditional, and not novel. Therefore only innovative use of TCM can be patented. But the special characteristics of TCM make it even more difficult to patent them. TCM are not just curative, but have a preventive part as well. And they are focused on syndromes not diseases (separate diseases can be prognosed as the same syndrome). TCM is catered to the individual and can by definition not be standardised. Its philosophy is holistic, which means no body/mind dichotomy, therefore mind cultivating methods, such as acupuncture, moxibustion, massage, taiji, qigong, next to herbal medicine, are part of TCM. It is also very hard to pinpoint the effective substance of a TCM, since many substances are used in one TCM which supposedly all contribute to the end result.

Ad 7. Protection of Chinese Medicines. This is a sui generis, which might be promising. The idea is to avoid the situation that Chinese people infringe some foreign patent by using or selling a TCM. "Meanwhile, our own TCM is frequently applied for patents by other countries, which reminds us of the serious situation that Chinese traditional medicine knowledge is encountering,"see here. Regulations on the Protection of Types of Traditional Chinese Medicine, effective 1993, see here.

Thanks Ron Yu (Novacourses) and Laurent Gaberell.

Picture by Jonas in China (some rights reserved)

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Zen And the Art Of Intellectual Property in China

I love that title (remix of perfect book title: Zen and the Art of Motorcycle Maintenance, by Robert Pirsig, which is a remix of the title Zen in the Art of Archery, by Eugen Herrigel who brought Zen to Europe after WOII), and have repeated it like a mantra. All the time I meditated until there was an occasion to use the title. That time has come now that the universe has alligned to this mantra, at last.

The occasion is an interesting article in the Shanghai Daily (one page free the rest paid) and a fine adaptation of the article on Xinhua with the same title (shorter but free) "Commercialism or industrialization is path to truth of Zen" about the world famous Shaolin Monastery turning to intellectual property to spread its ideas.

In the article the author asks whether the ideals of Zen Buddhism can be reconciled with commercialism/industrialization. Good question, my first take would be yes, because "seemingly disjunct or opposing forces are interconnected and interdependent in the natural world, giving rise to each other in turn." Here I would like to limit myself to some words on the three pillars of the Shaolin Monastary: Zen, martial arts and medicines.

Martial arts

Shaolin monks know not only how to use their hands (Plum flower fist, eigh flower fist and don't forget Dragon technique) and feet as lethal weapons. They also know how to protect their intellectual property rights assertively, as early as 1997; see the 2005 IP Dragon article about it here.

Martial arts. The Shaolin monastery tried to protect the incredible Shaolin kungfu style as an intangible cultural heritage with Chinese characteristics already in 2002, which was granted in 2006; see the 2006 IP Dragon article about it, here.

Medicines

China is keen to protect traditional Chinese medicines. My perception of traditional Chinese medicines is that the protection is difficult, since these medicines are highly personalised to each patient. Then again the medicines can be standardised. In 2007 Jia Hepeng wrote for Intellectual Property Watch that China still has problems with protecting traditional Chinese medicines, because of the gap between the patent system and the protection efforts for traditional knowledge, read here.

Zen 禪

Looking at the history of Zen Buddhism one could see this set of beliefs as an example of the benefits and appeals of remix, avant la lettre. It all started with Bodhidharma, an Indian prince, who went into China (teaching a special transmission outside normal Buddhist scripture), where the school of thought radically changed. This procedure happened again when the ideas were taken to Korea, and Japan and also to Vietnam it changed very much because of the influence of the local population. The result is that we now have an Indian version of Zen called Dhyāna, a Vietnamese version called Thiền, a Chinese version called Chán, a Korean version called Seon, and a Japanese version that obviously has become most popular in the West, called Zen and which is often used as a denominator of all these styles. I guess Zen is used in a dilutionary way for a long time.

I am doubtful if we would have such a wealth of branches in Zen Buddhism if the manifestations of Buddhism were protected and enforced by intellectual property rights after the time of the adventurous Bodhidharma, who went north to spread his ideas (Bodhidharma was not really infringing upon the intellectual property rights of Buddhism, even if there were any existent at the time, if he taught a special transmission outside scripture, as is said about him). Is remix the way to enlightenment?

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