The purpose of traditional Chinese medicine patent protection and traditional Chinese medicine variety protection is to provide legal protection to traditional Chinese medicine technological achievements in order to promote the development of traditional Chinese medicine. At this point, the two are unified. The differences between the two are now discussed. The differences are introduced as follows: 1. The legal effect of the two protections is different: the legal basis for patent protection is the "Patent Law of the People's Republic of China", which is a national law officially passed by the Standing Committee of the National People's Congress, and its protection method is determined by the Patent Office. The scope of patent protection granted shall be determined by the court through litigation procedures, and the court shall implement sanctions against the infringer; the basis for the protection of traditional Chinese medicine varieties is the "Regulations on the Protection of Traditional Chinese Medicine Varieties" formulated by the State Council, which is a national regulation, and its protection method is determined by the state. The health administrative department supervises and manages (now transferred to the State Food and Drug Administration, the same below) and adopts administrative protection measures. The former is greater than the latter in terms of legal effect. In other words, according to the principle that when laws and regulations conflict, regulations are subordinate to the law. For the same type of traditional Chinese medicine, if the rights holders protected by the two are different, the latter is subordinate to the former in terms of legal effect. For this reason, Article 2, Paragraph 2, of the Regulations on the Protection of Varieties of Traditional Chinese Medicines stipulates: “Applying for patents on varieties of traditional Chinese medicines shall be handled in accordance with the provisions of the Patent Law, and these Regulations shall not apply.” 2. The nature of the protected rights is different: Patent rights belong to the category of intellectual property rights. The so-called intellectual property rights are a special, intangible property ownership widely recognized internationally, including industrial property rights and copyrights, and industrial property rights include patent rights and trademark ownership. Intellectual property rights have the characteristics of exclusive rights and property rights in legal concepts. Patent protection is to provide protection in the form of granting patent rights to patent applicants. The patentee enjoys the exclusive right to the patented technology, that is, the patentee has the exclusive right to use its patent rights, and has the right to restrict or license others to use its patent rights. rights. In other words, it is the patentee himself who decides whether to exclusively produce his patented medicine, license it to other manufacturers, or license several others to produce it. If the use of his patented technology without the permission of the patentee constitutes an infringement, The patentee has the right to stop the infringement and require the infringer to compensate for its economic losses; while the protection of traditional Chinese medicine varieties is an administrative protection measure for the varieties of traditional Chinese medicine produced by specific production enterprises and does not have legal exclusive rights or property rights. Characteristics, that is, for the protection of traditional Chinese medicine varieties, the beneficiary of the same protected variety is not just one, but it can be two or more production companies at the same time. The right holder who decides to protect several production companies producing the same product at the same time is not the "Certificate of Protected Varieties of Traditional Chinese Medicine" In other words, the rights of the holder of the "Certificate of Protected Varieties of Traditional Chinese Medicine" are non-exclusive, and the right to punish unauthorized imitation of protected varieties of traditional Chinese medicine belongs to the health administrative department. The holder of the "Certificate of Protected Varieties of Traditional Chinese Medicine" The person does not have the right to claim compensation for his economic losses. Because patent rights have the characteristics of property rights, just like ordinary property owners, the patentee has the right to decide the fate of the patent rights he owns, such as transfer, donation, abandonment, etc. This is the legal concept of disposition right of the property owner. Therefore, the patent right can enter the field of commodity circulation for free buying and selling, and the patentee has the right to decide whether to obtain economic benefits through partial or full transfer; while the rights of the holder of the "Certificate of Protected Varieties of Traditional Chinese Medicine" cannot freely enter the field of commodity circulation for buying and selling. and transfer, only for protected varieties of traditional Chinese medicines that are in short supply for clinical use, based on the imitation recommendations put forward by the national competent department for production and operation of traditional Chinese medicines and approved by the health administration department of the State Council, holders of the "Certificate of Protected Types of Traditional Chinese Medicines" can charge reasonable usage fees. And if the two parties cannot reach an agreement on the amount of the user fee, the decision shall be made by the health administrative department. In other words, the collection of such royalties by the holders of the "Protected Variety Certificate of Traditional Chinese Medicine" is conditional and non-autonomous.

3. The scope of objects protected by the two is different: the objects protected by patents include traditional Chinese medicine compounds, single preparations, traditional Chinese medicine extracts and their preparations, preparation methods or processing techniques of traditional Chinese medicine, and new uses of traditional Chinese medicine. Moreover, patent-protected pharmaceutical products can They are officially approved drug varieties, or they can be unmarketed drugs under development; the objects of protection of traditional Chinese medicine varieties are only drug products listed in the national drug standards and the drug products recognized by the health administration department of the State Council as included in the drug standards of provinces, autonomous regions, and municipalities directly under the Central Government. (Article 2 of the "Regulations on Varieties of Traditional Chinese Medicine" stipulates that "These regulations apply to varieties of traditional Chinese medicines produced and manufactured in China, including proprietary Chinese medicines, extracts of natural medicines and their preparations, and artificial products of traditional Chinese medicines.") 4. Protection of both The durations are different: the duration of drug patent protection is unified to twenty years; the duration of protection of traditional Chinese medicines is not unified. The first-level protected varieties of traditional Chinese medicines are thirty years, twenty years, and ten years respectively, and the second-level protected varieties of traditional Chinese medicines are seven years.