Interpretation of traditional Chinese medicine (43)

Time: 2017-06-29

Article 43 the state shall establish a traditional knowledge protection database, protection directory and protection system of traditional Chinese medicine.
Traditional knowledge holders of traditional Chinese medicine for its holdings of TCM traditional knowledge shall have the right to inheritance use, for others to obtain and make use of its holdings of TCM traditional knowledge right informed consent and benefit sharing, etc.
The state shall carry out special protection for the composition and production process of traditional Chinese medicine prescribed by the state in accordance with the law.
This article is about the traditional knowledge protection of traditional Chinese medicine.
Traditional knowledge of traditional Chinese medicine is in the process of development of the Chinese nation reproduction, based on the long-term practice of the Chinese nation, generation and sustainable development, with a real or potential commercial value of medicine and health care knowledge, including the theory of traditional Chinese medicine, Chinese medicine prescriptions, medical technology and traditional knowledge about the resources of medicinal materials of Chinese medicine, Chinese herbal medicine processing and processing technology, unique mark symbol of traditional Chinese medicine, etc. From the perspective of modern intellectual property rights protection, traditional knowledge is already in the public domain and belongs to an object that is not protected and can be freely used by everyone. However, with the development of economic globalization, some western developed countries appeared on the international use of advanced technology and capital method, give priority to free use of traditional knowledge to apply for a patent in other countries, in turn, use of the intellectual property system limit the exclusion of the traditional knowledge source using its unreasonable phenomenon of traditional knowledge. Due to national suffered a growing threat to the survival and development, the traditional knowledge source starting to feel the importance of the protection of traditional knowledge, the world gradually reached a consensus to the protection of traditional knowledge. It is of great significance to establish and perfect the traditional knowledge protection system of traditional Chinese medicine through the legislation of traditional Chinese medicine.
Although the current concept of traditional knowledge has not yet been recognized by the world, it is generally considered that traditional knowledge has characteristics of historical, inheritable and regional characteristics. Traditional knowledge of traditional Chinese medicine is based on the Chinese nation has a long history of culture tradition, reflect the understanding of life, health and disease, the Chinese nation, is the long-term inheritance and sustainable development of valuable medicine system. This article makes the following provisions on the three types of traditional knowledge protection of traditional Chinese medicine:
Article 1 explicitly stipulates that the state establishes the traditional knowledge protection database, protection directory and protection system of traditional Chinese medicine. Traditional knowledge protection of traditional Chinese medicine is a huge systematic project, for the maintenance of the state and national interests is necessary and urgent, so should by the state as the main body, establishing and perfecting system of TCM traditional knowledge protection. In 2004, the state administration of traditional Chinese medicine (TCM) organized the work of "traditional knowledge protection research on traditional Chinese medicine", and the relevant research results were formally written into the national intellectual property strategy platform. In recent years, the state administration of traditional Chinese medicine is to strengthen the construction of traditional knowledge protection and research of traditional Chinese medicine system, establishment of traditional knowledge protection and research center of traditional Chinese medicine, promote the traditional knowledge of traditional Chinese medicine research, start of TCM traditional knowledge protection list and catalogue database construction, has been put in storage before song dynasty and yuan dynasty such ancient books content of more than forty thousand prescriptions and prescriptions. In the next stage, the state administration of traditional Chinese medicine will actively promote the construction of TCM traditional knowledge protection system and further improve the long-term mechanism of traditional knowledge protection of traditional Chinese medicine.
Specified in paragraph 2, of TCM traditional knowledge holders of its holdings of TCM traditional knowledge shall have the right to inheritance use, for others to obtain and make use of its holdings of TCM traditional knowledge right informed consent and benefit sharing, etc. The Convention on Biological Diversity (Convention on in'm) is a protection of the earth's Biological resources international Convention, China has signed on June 11, 1992, and on November 7, 1992, joined the Convention. In October 2010 "convention on biological diversity" contracting party congress held in Nagoya, Japan, and signed off on the biodiversity on access to genetic resources and fair is fair to share the use of benefits generated by the Nagoya protocol (hereinafter referred to as the Nagoya protocol), is access and benefit sharing of genetic resources and traditional knowledge issues such as agreed, and requires countries to take legislative or administrative measures, to ensure access to the obligation of benefit sharing of traditional knowledge to implement. The article belongs to the Nagoya protocol and the provisions of the corresponding protection of TCM traditional knowledge holders for others to obtain and make use of its holdings of TCM traditional knowledge right informed consent and benefit sharing, etc. It is important to note that the traditional knowledge holders of traditional Chinese medicine include not only natural persons, but also traditional Chinese medicine holders and other legal persons.
Article 3 explicitly stipulates that the state shall carry out special protection for the composition and production process of traditional Chinese medicine prescribed by law to be classified as state secret. In traditional Chinese medicine, a part of the traditional knowledge of traditional Chinese medicine is always kept secret and not in the realm of public knowledge. According to the provisions of the state secrets law "state secrets" refers to the relationship between national security and interests, in accordance with legal procedures to determine, in a certain period of time only for a range of people. State secrets has a strict confidentiality management system, the following involves the matters of national security and interests, after the leak could damage state in the political, economic, security and interests in the field of national defense, foreign affairs, shall be determined as state secrets, "(a) state affairs secrets in major decisions; (2) secrets in the activities of national defense construction and armed forces; (3) secrets in diplomatic and foreign affairs activities and secrets concerning the obligation of confidentiality; (4) secrets in national economic and social development; (5) secrets in science and technology; (6) to safeguard national security activities and to pursue the secrets of criminal offences; (7) other confidential matters determined by the state secrets administration." At present, "secrets in science and technology" are determined by the competent department of science and technology in China. According to the provisions of the state secrets law, the confidentiality period of state secrets shall not exceed 30 years unless otherwise stipulated. If a period of confidentiality is extended, a period of confidentiality shall be redefined before the expiration of the original confidentiality period. For the guarding of state secrets method classified as state secrets shall be determined in accordance with the traditional Chinese medicine prescription composition and production process (e.g., yunnan baiyao, slice seed Huang, etc.), should according to different categories, completes the traditional Chinese medicine (TCM) industry related system and state secrets law of the protection of varieties, the special Chinese medicine varieties for special protection, this also is the need of maintaining state security and national interests. (from the interpretation of Chinese medicine law of the People's Republic of China, China democratic legal press)