Striking a Balance Between Intellectual Property Protection of Traditional Chinese Medicine and Access to Knowledge

• Author: Lin Peng
• Pages: 274-307

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274 TSINGHUA CHINA LAW REVIEW [Vol. 7:273

STRIKING A BALANCE BETWEEN INTELLECTUAL

PROPERTY PROTECTION OF TRADITIONAL CHINESE

MEDICINE AND ACCESS TO KNOWLEDGE

LIN Peng

Abstract

Traditional Chinese medicine has played a vital role in the well being of Chinese people for

thousands of years. It is a comprehensive system of herb medicine that has b een repeatedly

practiced and gradually summarized by Chinese people over a long period of time. The current

practice related to traditional Chinese medicine has gone beyond the traditional practice. It at

least includes mass production of traditional Chinese medicine pills, traditional Chinese

medicine herb extract and therapeutic chemicals identified in traditional Chinese medicine

materia medica. While traditional practice is in the public domain, the case is less clear for the

expansive practice of traditional Chinese medicine, particularly because the public has not

practiced such knowledge before. The current intellectual property law is designed to strike a

delicate balance between incentives of creation and access to knowledge. It is often construed

from a utilitarian perspective. This utilitarian consideration can justify some protection for the

new practice. While the current intellectual property law often only recognizes limited defensive

rights for traditional knowledge holder s, once the rights of non-traditional practitioners are

recognized, the rationale of intellectual property legal regime may justify a stronger package of

rights, which would include more than defensive rights for traditional knowledge holders.

I. INTRODUCTION

Inspect the state of yin and yang; and adjust them to reach

the balance.

-Yellow Emperor’s Inner Canon1

Traditional Chinese Medicine, the collective name for a broad

range of medicine practices that have been developed in China, has a

history of more than 3,000 years. The earliest documentations of

traditional Chinese medicine can be dated back to 1,100 B.C.2 It is a

comprehensive system of healthcare that has been repeatedly practiced

and gradually summarized by Chinese people over a long period of

time. No other healthcare systems in the world − either modern or

ancient− have such a long history.3

Traditional Chinese medicine embraces a wide range of

practices, including various forms of herbal medicine, acupuncture,

1 Huangdi Neijing(su wen) (黄帝内经(素问)) [Yellow Emperor's Inner Canon (Su Wen)] 4 (Fu

Jinghua Chen Xinzhi eds. 1997) (stating the most fundamental principle in traditional Chinese Medicine).

2 Leung AY, Traditional Toxicity Documentation of Chinese Materia Medica—An Overview, 34(4)

TOXICOL PATHOL 319-26 (2006).

3 Id.

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2015] TRADITIONAL CHINESE MEDICINE PROTECTION 275

moxibustion, massage, qigong, and dietary therapy, etc. Among them,

the herbal medicine is probably the most important. The Treatise on

Cold Damage Disorders, an early doctrine of Chinese medicine

compiled in the Han Dynasty (219 A.D.), included 112 herbal

prescriptions.4 These prescriptions typically include a combination of

various herbs and are administered according to a unique set of

theories. These theories were summarized in the Yellow Emperor’s

Inner Canon, another early doctrine of Chinese medicine compiled

more than 2,000 years ago. The Yellow Emperor’s Inner Canon tied

yin-yang and five elements to a body’s functional entities: lungs are

linked to metal; kidney to wood; liver to water; heart to fire; and spleen

to earth. While health is the result of the harmonious interaction

among these functional entities, imbalance between yin and yang will

lead to diseases.

The fundamental principle of traditional Chinese medicine practice

is to restore the balance, as it is elegantly stated in the Yellow

Emperor’s Inner Canon, “Inspect the state of yin and yang; and adjust

them to reach the balance.” By measuring the pulse and inspecting the

tongue, skin, and eyes etc., a traditional Chinese medicine doctor can

identify the cause of the imbalance: whether it is due to an excess of

yin or due to a surplus of yang. If yin is dominant, then herbs that can

boost yang will be administered. Similarly, if yang is excessive, the

doctor needs to prescribe herbs to boost yin. There are great

similarities between the theory of traditional Chinese medicine and

Daoism. In fact, the traditional Chinese medicine has heavily

influenced and been influenced by Daoism across the history.5

The theory of traditional Chinese medicine is not supported by

modern evidence-based medicine. Even though there is some research

in literature on the theory of traditional Chinese medicine, 6 the

methodology is often limited and the reasoning is often flawed. These

studies often perform a simple statistical test as a means of proving the

theory of traditional Chinese medicine. For example, in an article

published by a researcher from Beijing University of Chinese

Medicine,7 the author notices that patients with malignant tumor often

4 Nigel Wiseman, Craig Mitchell &Ye Feng, Shang Han Lun: Cold Damage, Translation &

Commentaries, 60(3) J. ASIAN STUD. 843-5 (2001).

5 Zhan Jiayang (战佳阳), Daojia, Daojiao yu Huangdi Neijing (道家、道教与黄帝内经) [Daoists,

Daoism and the Yellow Emperor’s Inner Canon], ZHONGYI JICHU LILUN (中医基础理论)

[FUNDAMENTAL THEORY OF TRADITIONAL CHINESE MEDICINE] (2004).

6 Lin Long & Cai Xiaohua (林龙，蔡晓华), Xiandai Yixue Shijiao Xia de Zhongyi Yinyang Xueshuo

(现代医学视角下的中医阴阳学说) [A Study on the Theory of Yin and Yang from the Perspective of

Modern Medicine], 10 YATAI CHUANTONG YIYAO ( 亚太传统医药) [ASIA-PACIFIC TRADITIONAL

MEDICINE] 209, 209-10 (2012).

7 Wei Yun (韦云), E'xing Zhongliu Huanzhe Siwang Shijian he Zhongyi Yinyang Guanxi de Yanjiu

(恶性肿瘤患者死亡时间和中医阴阳关系的研究) [The Death Time of Cancer Patients and Yin and

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276 TSINGHUA CHINA LAW REVIEW [Vol. 7:273

die in the early morning, which is consistent with the prediction made

by traditional Chinese medicine. Assuming the statistical test is

performed rigorously, the limitation of this research is that it only

proves that the death of patients occurs more often in the early

morning. It does not support the overly broad conclusion regarding the

validity of the theory of Chinese medicine. This research is an

anecdotal evidence of traditional Chinese medicine. It is problematic

because other anecdotal evidence that is inconsistent with the

prediction of yin-yang may have been ignored and not be reported.

Currently, no biomedical evidence at the molecular level can support

the theory of yin-yang and five elements. Selective reports of positive

evidence usually cannot constitute a valid proof.

From the perspective of modern biomedical science, the theory of

traditional Chinese medicine often seems unfounded, and to some

extent, superstitious. Some scholars have unduly expanded the doubt

on traditional Chinese medicine theory to all traditional Chinese

medicine practices. Lu Xun, a leading figure of modern Chinese

literature, in his work Call to Arms, claimed, “Chinese medicine

(practitioners) are liars”. 8 The general public’s distrust toward

traditional Chinese medicine has intensified in recent years as modern

(western) medicine has become widely available. Many Internet

websites have begun to criticize traditional Chinese medicine and

these criticisms have drawn more and more public attention.9

Traditional Chinese medicine is currently in an embarrassing

situation. On one hand, the medical community defends and celebrates

traditional Chinese medicine, as it is one of the most important

heritages of the Chinese culture. On the other hand, some people

dismiss it quickly, as it is not supported by modern evidence-based

medicine. However, those who accept the traditional Chinese

medicine without any reservations probably have been influenced by

national pride. Those who have quickly dismissed traditional Chinese

medicine probably have not considered the fact that the traditional

Chinese medicine has been repeatedly practiced in China for a long

time. Prescriptions that are effective have a much better chance to be

circulated and be passed down to today.

How traditional Chinese medicine should be considered is likely to

remain unsettled for a long time. But without adequately assessing the

value and the limitation of traditional Chinese medicine, any policy

discussion regarding intellectual property protection of traditional

Yang in Traditional Chinese Medicine], 3 ZHONGXI YI JIEHE LINCHUANG (中西医结合临床)

[COMBINATION OF TRADITIONAL CHINESE MEDICINE AND WESTERN MEDICINE] 5-8, 2005.

8 Lu Xun (鲁迅), Nahan (呐喊) [Call to Arms] 3 (Sichuan Children Press 2004) (1922).

9 Fang Zhouzi (方舟子), Piping Zhongyi (批评中医) [Criticisms of Traditional Chinese Medicine]

(2007), available at http://vdisk.weibo.com/s/B3t7VpSlL84E.