On the Establishment of a Sui Generis Protection System for Traditional Knowledge of Traditional Chinese Medicine

Abstract

As a crucial component of traditional Chinese medicine (TCM), the traditional knowledge of traditional Chinese medicine (TKTCM) holds significant value in health care, economy, science and technology, culture, and ecology. However, it currently faces a dual predicament: misappropriation and unauthorized use by foreign entities, coupled with inadequate preservation and protection domestically. The existing legal framework is incapable of providing comprehensive and systematic protection, making the establishment of a sui generis protection system imperative. This sui generis protection system should address four core issues: defending against foreign misappropriation and bio-piracy, protecting the rights of TKTCM holders while regulating knowledge access and utilization, reconciling the interests of rights holders and broader public interests, and establishing effective integration with the current legal system. Accordingly, we propose that a sui generis protection system for TKTCM should comprise four key mechanisms: a defensive mechanism to block improper foreign patent applications, a rights protection mechanism for knowledge holders, an interest balance mechanism to mediate between holders’ rights and societal public interests, and an integrative mechanism to ensure synergy with existing legal frameworks. Through these mechanisms, the system aims to promote the protection, preservation, innovation, and development of TKTCM.

Keywords

traditional knowledge of traditional Chinese medicine (TKTCM) / sui generis protection / intellectual property rights / balance of interests / rights of holders

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