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, '
, 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.
