Written by: Corinna Chen (CAPLUS research assistant, 2024)
On 2 September 2024, Melbourne Law School lecturer and researcher Dr Ben Hopper presented a thought-provoking seminar on the patenting of traditional medical knowledge in China and its contribution towards China’s patent boom phenomenon. The event was hosted by Sydney Law School’s Centre for Asian and Pacific Law (CAPLUS) as part of its ongoing PhD/Early Career Researcher presentation series. Dr Hopper’s thesis offered a fresh perspective on the broader motivations and societal trends behind the growing number of patent applications for traditional medical practices, particularly in China’s southwestern province of Guizhou, challenging more conventional explanations based on strengthened patent laws, state subsidisation, research and development intensification and increases in foreign direct investment.
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Dr Hopper began by outlining the historical development of China’s patent laws, from early attempts during the Qing Dynasty to the establishment of the country’s first modern patent law in 1984. He highlighted how China’s unique legal landscape, influenced by Marxist economics and socialist characteristics, has shaped the evolution of its patent system. This paved way for the ensuing discussion on the “patent boom” that has seen China become the world’s leading filer of patents, with an extraordinary level of growth occurring from the late 2000s into the early 2010s.
The core of Dr Hopper’s research thesis lies in his claim that traditional explanations for China’s patent boom – such as research and development (R&D) intensification, foreign direct investment (FDI), and patent subsidies – are incomplete. He argues that the epistemological shift in individual perspectives, led by the intense commoditisation of the economy, is a critical yet often overlooked factor. He further hypothesises that there exists a positive correlation between an individual’s marketisation (that is, how market-oriented a person is) and their ‘patent grip’ index (the likelihood of engaging with the patent system and complying with patent laws), with the individual’s proximity to the State being an enhancing factor.
Using original fieldwork data from 53 traditional medical practitioners in Guizhou, Dr Hopper found statistically significant results in support of his hypothesis that more market-oriented individuals are more likely to be subject to the patent grip. In particular, the case study focused on how traditional medicine practitioners in Guizhou, many of whom belong to ethnic minorities, navigated the patent landscape. Dr Hopper’s mixed-methods research, combining surveys and qualitative interviews, revealed that market exposure influences how these practitioners increasingly view their traditional knowledge as commodities that can be protected, sold, or licensed. This shift in perspective aligns with a broader trend towards the commodification of knowledge in China’s rapidly evolving market economy.
Dr Hopper’s findings challenge assumptions that traditional medical knowledge is inherently resistant to patenting due to cultural norms of secrecy and communal ownership; instead, they suggest that even within the realm of traditional knowledge, market forces and closer relationships with the state play a vital role in driving patenting activity.
At the end of the presentation, Dr Olugbenga Olatunji from Sydney Law School offered insightful commentary on the unique nature of China’s patent phenomenon compared to other developing countries such as India, where similar population levels and much stronger patent legislation have not produced comparable results in terms of the ‘boom’ observed in China. Dr Olatunji also raised interesting questions about how traditional knowledge is protected, shared and commercialised in China, pointing to inherent conflicts between customary practices in the field and the more stringent legal requirements of full disclosure in patent applications.
The session concluded with a lively discussion on the broader policy implications and potential transferability of the Chinese model in other countries navigating through similar issues, with one example raised being the approach towards traditional and Indigenous knowledge in Australia.
