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Erfanmanesh M H. Study on Patentability of Traditional Herbal Medicine. MLJ 2021; 15 (56) :587-610
URL: http://ijmedicallaw.ir/article-1-1370-en.html

Background and Aim: Herbal drugs are the result of human interaction with their environment in the use of plants in the treatment of diseases, which is considered as the legacy of the predecessors that is the intellectual property of a country. Considering the necessity of legal action to protect traditional knowledge and medicine due to the misuse of this knowledge, in recent years increasing attention has been paid to the protection of traditional herbal medicines based on the patent system. The basic argument in this regard is whether the legal protection of the patent system from traditional medicine is possible with respect to its specific features?
Materials and Methods: This research was conducted by library and documentary methods and through the texts and documents related to the subject of research. Iranian and foreign sources were collected and reviewed by content analysis method.
Results: It was observed that the discoveries, methods of diagnosis and treatment and innovations that are unethical and against public order and sharia can not be patented. Given that herbal medicines in traditional medicine require the creation of a medicinal product with healing properties, it is not considered as a discovery. Although these drugs may be used after they have been manufactured without registration, as long as such use does not disclose sufficient and effective information about these drugs, it will not be a problem to be considered new. Also, despite the claims of some authors that information about herbal medicines has been widely disseminated and made available to the public, it has become clear by providing examples of field studies that it is not appropriate to generalize in this regard. In contrast, many examples of practices in indigenous communities and local groups were provided to keep medical and pharmaceutical innovations secret. Also, when the idea of ​​using a certain plant to treat a specific disease is not obvious to a person with ordinary skills in traditional medicine and the pharmaceutical industry, that herbal medicine has an inentive step.
Ethical considerations: This article is authored paying attention to ethical considerations such as honesty and trustworthiness in the analysis and citation.
Conclusion: The patent system can be considered as one of the mechanisms to support herbal medicines and should not be excluded from the scope of options available to support these medicines despite of some problems.

Cite this article as: Erfanmanesh MH. Study on Patentability of Traditional Herbal Medicine. Medical Law Journal 2021; 15(56): e37.