Intellectual Property Rights and China: The Modernization of Traditional Knowledge

By Bryan S. Bachner

This book examines the application of intellectual property rights to traditional Chinese medicine (TCM). Conventional legal thinking describes authentic TCM as a common heritage that is owned by no one. Its genetic resources, therefore, should be freely available for pharmaceutical research. According to the author, this interpretation overlooks any rights that could accrue to the authentic inventors of TCM and, by classifying TCM as common property, disregards the value to be gained through the conservation (and consequent sustainable use) of TCM's genetic resources. The author claims that the recognition of custodial rights over traditional knowledge will provide incentives to developing countries (including China) to conserve, cultivate, and provide access - for the sake of pharmaceutical research - to valuable genetic resources. The book analyzes the patent law that regulates TCM and suggest how it may be improved so as, on the one hand, to ensure that pharmaceutical firms have sufficient incentives to continue to research and develop TCM while, on the other hand, to recognize the value of the authentic traditional contributions. This book raises to a new level the continuing discussion of the correlation between intellectual property rights and environmental law. In the establishment of the law concerning intellectual property rights, the State is primarily concerned with creating incentives for invention through the assignment of property rights. In enacting environmental law, the State prioritizes the prevention of environmental injury by regulating the harmful by-products of a particular economic activity. The idea that both categories of law should be separate because they are different is a simplistic answer to a complicated question. Regrettably, such rationalization, while not ill-intentioned, creates negative impacts on economic activities, such as the commercialization of traditional knowledge, a process where the technological depends upon the biological and vice-versa. Any law that denies this complexity in order to focus on governing its narrow objective will inevitably lead to adverse consequences. To the surprise of many who would assume that the rule of law is not developed on the mainland, China has a unique opportunity to contribute to the evolution of this important legal and economic advancement. This study will be of interest to academics, practicing lawyers, government legal advisors, and investors alike.


228 pages

Publication Date: 12/4/2008
Format: Cloth
ISBN: 9789077596623

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