4. conclusion

in a word, it is indispensable to strengthen our awareness of protecting traditional medicinal knowledge, in particular under the ipr framework; otherwise china will lose its medicinal advantage of tremendous historic value to developed countries that emphasize ip protection.

while it is true that no tmk protection may be efficiently implemented if we have no clear concept of what tmk is, the key lies in whether the medicinal products or practices conform to the essentials of protection, rather than the precise definition of tmk. in accordance with different circumstances, we may adopt different protection strategies that lay down different requirements.

for the iprs entitlement to protect tmk, one solution, the most practical one at the moment, is to make full use of the existing ip system to bring the protection in the fields of copyright, patent, trademark as well as undisclosed information.

in respect of copyright and relating rights, inventors or researchers shall be aware of the possible consequences when they release research articles in public on tmk-based new medicines that are eligible for patent application. for some non-medication therapies, like tai ji and qi gong, the knowledge holder of a distinct split may record the physical movements, and mental regulations sometimes, into books consistent with the originality basis, and enjoy copyright protection. while for tmk ineligible for any ipr protection, database establishment shall be given priority.

in case additional values could be attached to traditional medicines or methods to meet the three patenting requirements (novelty, inventiveness and industrial application), patent protection may be suggested, but only two types may be available—inventions and utility models.

for traditional medicine manufacturers and those who share similar tm practices or locally-grown herbal materials within a region, trademark, in particular collective or certification trademark, appears to be a wiser decision.

as to undisclosed information, it is commonly applicable to informal, secret family therapies, or original medical treatments that tmk holders are reluctant to disclose and expecting for a long-term protection.

though it seems fairly feasible to apply the existing system as the only legal solution, there exist some pending problems as to limitations of the current protection regime, such as additional criteria specifically for traditional knowledge as human heritage, reasonably identifying right-owner, supplement of right content, modification of time limit, etc. these deficiencies call for a sui generis system which needs long-term studies and international cooperation, thus laid beyond the focus of this paper.

for the purpose of guarding tmk against misuse, patent applicants shall be required to disclose the tmk in the application in accordance with the benefit-sharing principle, if it can be patented; and for tmk-based products or practices in the public domain, a large database shall be established to exam patent application.

references:

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