摘要通过对专利法理的解析,指出中药经典方属于专利法中"现有技术"范畴,已失去获得专利权的基础;又以日本汉方药为例,通过分析汉方药行政管理、汉方药相关专利申请情况,指出中药经典方在日本同样无法获得专利授权;进而通过对比分析中国、美国、欧洲及世界专利,指出中国仍是中药专利申请的主要来源.亦提出"积极保护"的建议,认为应摒弃唯专利化的保护理念,从产业开发、推广应用、知识产权保护等多个维度提高中药的世界影响力.

abstractsThrough the analysis of patent jurisprudence, it is proved that the Classical Prescription of Traditional Chinese Medicine (CPTCM) belongs to the scope of "existing technology" in the Law of Patent, and has lost the foundation of obtaining patent rights. Taking Japan's CPTCM as an example, based on the analysis of the administration of CPTCM and patent applications related to CPTCM in Japan, it is proved that CPTCM can not obtain patent authorization in Japan. Through the comparison of patent in China, the United States, Europe and worldwide region, it is proved that China is still the main source of patent applications for Traditional Chinese Medicine. At the end of the article, the author puts forward the suggestion of "active protection". It is believed that we should abandon the concept of patent-only protection and improve the influence of Traditional Chinese Medicine in worldwide from the aspects of industrial development, promotion ofits application, and intellectual property protection.