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

AuthorLin Peng
JIANG (DO NOT DELETE) 15/12/9 12:20 PM
LIN Peng
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.
Inspect the state of yin and yang; and adjust them to reach
the balance.
-Yellow Emperors 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 MedicaAn Overview, 34(4)
TOXICOL PATHOL 319-26 (2006).
3 Id.
JIANG (DO NOT DELETE) 15/12/9 12:20 PM
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)
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
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
JIANG (DO NOT DELETE) 15/12/9 12:20 PM
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)
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

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