Recently, the National Intellectual Property Administration published the Guiding Opinions on Examination of Invention Patent in the Field of Traditional Chinese Medicine (Draft for Comment). China Biodiversity Conservation and Green Development Foundation (CBCGDF) General Affairs Department put forward recommendations from three aspects as below:
I. The examination of patents for traditional Chinese medicine should fully take into account the requirements of international conventions or treaties on biodiversity protection that China has acceded to and conform to international standards
The condition of endangered and rare wildlife species used in traditional medicine has attracted worldwide attention. The Opinions of the CPC Central Committee and the State Council on Promoting the Preservation, Innovation, and Development of Traditional Chinese Medicine points out that the preservation, innovation, and development of TCM is an important component of the socialism with Chinese characteristics for a new era concerning the rejuvenation of the Chinese nation. It is of great significance to carry forward the essence of traditional Chinese culture, enhance the self-confidence in its national and culture, promote cultural exchanges and people-to-people bonds, and promote the construction of a community of shared life.
The review principle of paragraph 1, Article 5 in the Guiding Opinions, “Inventions and creations which break laws, corrupt social morals, or infringe public interest shall not be granted invention right.” It is suggested to fully consider international treaties and conventions, such as Convention on Biological Diversity (CBD) and Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), to amend as follows: “Inventions and creations which break laws, international conventions and treaties, corrupt social morals, or infringe public interest shall not be granted invention right.” The amendment can enlarge the responsible image of China as well as set the TCM industry in line with international standards, a practice that would promote the global development of TCM.
II. The “List of Rare Chinese Medicinal Materials Prohibited from Invention Patent in Chinese Traditional Medicine” should be formulated.
The Guiding Opinions clarifies that the list of rare and endangered species prohibited in TCM production is under dynamic regulation, and the review process should take notice of the latest regulation by relevant departments. The General Affairs Department of CBCGDF believes that this description would not truly achieve the original purpose of banning rare species in TCM production.
Here are two reasons. On the one hand, national regulations including the National Protected Wild Animal List and the List of National Protected Wildlife Species for Medical Purpose cannot get updated timely. On the other hand, some of the lists don’t match international treaties or conventions. For instance, all eight pangolin species are listed in Appendix I of CITES, marking pangolin equal to the first-class national protected wild animal and all international trade is completely banned. But this creature is still under the second-protected national animal in the above two Lists, which has received general criticism in the international community.
In order to promote the international attention, recognition and sustainable development of the Chinese medicine industry, it is recommended to integrate the relevant national protection lists and the lists of international conventions or treaties on wild animals and plants that China has joined, and formulate the “List of Rare Chinese Medicinal Materials Prohibited from Invention Patent in Chinese Traditional Medicine”, and keep updated and adjusted in real time.
III. Add special instructions on the patent application of rare and endangered traditional Chinese medicine
In order to promote the conservation of endangered wildlife via the strictest system, maintain biological safety and ecological equilibrium, the Guiding Opinions should request the invention application concerning the utilization of nationally protected wildlife species provides with a special description note. According to Opinions of the CPC Central Committee and the State Council on Promoting the Preservation, Innovation, and Development of Traditional Chinese Medicine, (enhance rare and endangered medicinal wildlife protection, and support the development and utilization of alternatives), the Guiding Opinions is also suggested not to grant the patent to invention applications with endangered and rare medicinal species without considering existing alternatives.
Orginal Chinese article:
By / Wang Yanqing Modified / Maggie