The Supreme Law issued opinions on strengthening judicial protection of intellectual property rights in traditional Chinese medicine

In order to improve the judicial protection system of traditional Chinese Medicine intellectual property rights and promote the effective connection between the protection of traditional Chinese medicine knowledge and the modern intellectual property system, the Supreme People's Court issued the Opinions of the Supreme People's Court on Strengthening the Judicial Protection of Traditional Chinese Medicine Intellectual Property Rights (hereinafter referred to as the Opinions) on December 22, providing clear guidance for the judicial practice of traditional Chinese medicine intellectual property rights.

The person in charge of the Third Chamber of the Supreme People's Court said that the promulgation of the Opinions aims to thoroughly implement the spirit of the 20th Congress of the Party, implement the major decisions and arrangements of the Party Central Committee and The State Council on the revitalization and development of traditional Chinese medicine and the relevant requirements of the Outline of the Program for Building a Strong Country in Intellectual Property Rights (2021-2035), and continuously improve the judicial protection level of intellectual property rights in traditional Chinese medicine in the new era and new journey. We will promote the inheritance, innovation and development of traditional Chinese medicine, make better use of its unique advantages in disease prevention and treatment, and better ensure the health of the people.

The Opinions adhere to strict protection in accordance with the law, correctly apply the Civil Code, the Law on Intellectual Property Rights, the Law on Traditional Chinese Medicine and other laws and regulations, effectively safeguard social equity and justice and the legitimate rights and interests of right holders, implement punitive compensation for intellectual property rights, and promote the creative transformation and development of traditional Chinese medicine. We should adhere to fair and reasonable protection, reasonably determine the rights boundaries and protection methods of TCM intellectual property rights, make the scope and intensity of protection commensurate with the technical contribution of TCM, and promote the continuous enhancement of TCM's ability to inherit and innovate.

The reporter learned that the Opinions made specific provisions on strengthening the judicial function of the judicial protection of traditional Chinese medicine intellectual property rights and improving the judicial level, covering the judicial protection of traditional Chinese medicine patents, commercial marks, commercial secrets and state secrets, copyright and related rights, traditional Chinese medicine resources, traditional Chinese medicine varieties and other fields.

In terms of strengthening the protection of TCM patents, the Opinions emphasize the correct grasp of the characteristics of different subject patents such as TCM composition, TCM extract, TCM dosage form, TCM preparation method, TCM equipment and medical use, strengthen judicial review of the administrative behavior of TCM patent authorization and confirmation according to law, and promote the unification of the standards of administrative law enforcement and judicial judgment. Constantly meet the needs of traditional Chinese medicine patent protection. In strengthening the protection of TCM commercial marks, the Opinions strengthen the judicial protection of well-known TCM trademarks, traditional brands and time-established brands, properly handle historical problems in accordance with the law, and promote the inheritance and development of TCM brands. In terms of strengthening the protection of TCM trade secrets and state secrets, the Opinions pointed out that special protection should be given to the composition and production process of TCM prescriptions that are recognized as state secrets according to law, and the theft and disclosure of TCM state secrets should be severely punished. In terms of strengthening the protection of TCM copyright and related rights, the Opinions strengthen the protection of intellectual achievements and the protection of the rights and interests of creators formed by the collection, research and analysis of TCM formulas, secret recipes and diagnosis and treatment technologies. In terms of strengthening the protection of the legitimate rights and interests of TCM innovation subjects, the opinions pointed out that the right of those who have made important contributions to the completion and transformation of TCM technological achievements to receive rewards and remuneration should be supported in accordance with the law.

The Opinions intensify punishment for infringement of intellectual property rights of traditional Chinese medicine. It is required to adopt measures such as behavior preservation and sanctions against acts obstructing litigation in accordance with the law to promptly and effectively curb infringement in the field of traditional Chinese medicine. The rules of evidence preservation, evidence provision order, burden of proof transfer and obstruction of proof are actively applied to reduce the burden of proof for the holders of TCM intellectual property rights. We should correctly grasp the constitutive elements of punitive damages, support the right holder's request for punitive damages in accordance with the law, and effectively increase the amount of punitive damages for serious infringement acts such as repeated infringement and infringement as a business. We will intensify the criminal crackdown, punish the criminal acts of violating the intellectual property rights of traditional Chinese medicine in accordance with the law, and give full play to the deterrence, prevention and correction functions of punishment.

The Opinions also focus on deepening reform and innovation, improving the comprehensive protection system of TCM intellectual property rights, and putting forward specific measures such as improving the mechanism for finding out the facts about TCM technology, strengthening the coordinated protection of TCM intellectual property rights, enhancing the capacity of judicial services, and strengthening the construction of science and technology and information technology, so as to help the modernization and industrialization of TCM based on the development needs of TCM in the new stage of development. (Reporter Wang Lili)