The compatibility of patent law and traditional Chinese medicine

Abstract

Traditional Chinese Medicine (TCM) is a medical system with a unique medical philosophy that continues to guide the contemporary turning out of new pharmaceutical formulae. The clinically-proved effective components of these formulae are being extracted by means of modern technology. Natural Chinese medicines account for approximately 30% of the global sales volume of all medicines, and the international market-size of the TCM industry is increasing rapidly. The TCM industry depends on the patent protection of the results of its R&D no less than does any other industry. However, the patent examination guidelines of many important jurisdictions are hostile to the granting of patents to TCM products and processes. This is partly attributable to the vast differences between the philosophies of TCM and Western medicine, and to the imperfect understanding in many jurisdictions (particularly where Western Medicine is dominant) of the former. To this considerable degree, patent law fails to accommodate the TCM industry. Consequently, the TCM inventor will be left open to the depredations of the ‘free-rider’ phenomenon, the circumstance in which the inventor loses the benefits of his invention, and his investment in it, to a purloiner. The research examines the compatibilities between patent law and TCM, and argues that patent policy shall be adjusted to better accommodate the characteristics of TCM. Other forms of IPR protection are also discussed in comparison with patent with the purpose of illustrating the significance of patent in protecting TCM inventions.