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Regulations on the Protection of Layout-design of Integrated Circuits (2001.10.1)

(Adopted at the 36th Executive Meeting of the State Council on March 28, 2001, promulgated by Decree No. 300 of the State Council of the People's Republic of China on April 2001, and effective as of the date of October 1, 2001)

 

CHAPTER I GENERAL PROVISIONS

Article 1. These Regulations are formulated in order to protect the exclusive right of layout-design of integrated circuit, encourage innovation of integrated circuits technology and promote development of science and technology.

 

Article 2. For the purposes of these Regulations,

(1) “integrated circuit” means semiconductor integrated circuit, that is, a product in its intermediate or final form which uses semiconductor as its chip, in and/or on which two or more elements, including at least one active element, and some or all of the interconnections are integrally formed and which is intended to perform a certain electronic function;

(2) “layout-design of integrated circuit” (hereinafter referred to as layout-design), means the three-dimensional disposition of an integrated circuit, consisting of two or more elements, with at least one active element, and some or all of the interconnections, or such a three-dimensional disposition prepared for the manufacture of an integrated circuit;

(3) “right holder of layout-design” means the natural person, the legal person or any other organization that, according to these Regulations, is entitled to the exclusive right of layout-design;

(4) “reproduction” means the act of reproducing a layout-design or of reproducing an integrated circuit incorporating the layout-design;

(5) “commercial exploitation” means the act of importing, selling or providing in any other form, for commercial purposes, a layout-design under protection, an integrated circuit incorporating the layout-design or an article incorporating such an integrated circuit.

 

Article 3. Any layout-design created by a Chinese natural person, legal person or other organization shall be accorded the exclusive right of layout-design in accordance with these Regulations.

Any layout-design created by a foreigner shall, where it was first commercially exploited in the territory of the People's Republic of China, be accorded the exclusive right of layout-design in accordance with these Regulations.

Any layout-design created by a foreigner shall be accorded the exclusive right of layout-design in accordance with these Regulations, if the country to which the foreigner belongs has concluded agreement with China to protect layout-design or the country to which the foreigner belongs and China are both parties to an international treaty concerning the protection of layout-design.

 

Article 4. Any layout-design under protection shall be original, which means that the layout-design is the intellectual achievement of the creator himself, and it is not a commonplace among creators of layout-designs and manufacturers of integrated circuit at the time of its creation.

Where a layout-design under protection consists of several commonplace layout-designs, the combination of these layout-designs taken as a whole shall be in compliance with the conditions referred to in the preceding paragraph.

 

Article 5. Protection to layout-design under these Regulations shall not extend to the ideas, processing methods, operations and mathematics concepts.

 

Article 6. The intellectual property administration department of the State Council is responsible for the relevant administrative work concerning layout-design exclusive right in accordance with these Regulations.

 

CHAPTER II EXCLUSIVE RIGHT OF LAYOUT-DESIGN

Article 7. The right holder of layout-design shall enjoy the following exclusive right:

(1) reproducing the layout-design under protection in its entirety or for any creative part thereof;

(2) commercially exploiting a layout-design under protection, an integrated circuit in which the layout-design is incorporated, or an article incorporating such an integrated circuit.

 

Article 8. The exclusive right of layout-designs takes effect with its registration with the intellectual property administration department of the State Council.

Any unregistered layout-design shall not be protected under these Regulations.

 

Article 9. The exclusive right of layout-design shall belong to its creator, except where otherwise provided in these Regulations.

Where a layout-design is created according to the will and under the charge of a legal person or other organization, which shall also bear responsibility therefrom, such legal person or other organization shall be the creator.

Where a layout-design is created by a natural person, the natural person shall be the creator.

 

Article 10. Where a layout-design is created by the cooperating efforts of two or more natural persons, legal person or other organizations, the ownership of the exclusive right shall be agreed upon by the co-operators; in absence of such agreement or explicit agreement, the exclusive right shall be owned jointly by the co-operators.

 

Article 11. Where a layout-design is created in execution of a commission, the ownership of the exclusive right shall be agreed upon between the commissioning and the commissioned parties; in absence of such agreement or explicit agreement, the exclusive right shall be owned by the commissioned party.

 

Article 12. The protection term of the exclusive right of layout-designs shall be 10 years, counting from the date of filing the application for registration or from the date on which it was first commercially exploited anywhere in the world, whichever expires earlier. However, no matter whether it has been registered or commercially exploited, a layout-design shall no longer be protected under these Regulations at the expiration of 15 years from the date of the completion of its creation.

 

Article 13. Where the exclusive right of layout-design belongs to a natural person, the exclusive right shall, after the death of the natural person and within the term of protection as provided for in these Regulations, be transferred in accordance with the provisions of the Succession Law.

Where the exclusive right of a layout-design belongs to a legal person or other organization, the exclusive right shall, after the change or the termination of the legal person or other organization and within the term of protection as provided for in these Regulations, be owned by the legal person or other organization which succeeds to its rights and obligations; where there is no such legal person or other organization to succeed to its rights and obligations, the layout-design shall enter into the public ownership.

 

CHAPTER III REGISTRATION OF LAYOUT-DESIGN

Article 14. The intellectual property administration department of the State Council is responsible for registration of layout-design and receives the application for registrations of layout-design.

 

Article 15. Where a layout-design for which registration is applied for relates to the security or other vital interests of the State and is required to be kept secret, the application shall be handled in accordance with the relevant provisions of the State.

 

Article 16. Where the registration for layout-design is applied for, the following shall be submitted:

(1) the application form for registration of the layout-design;

(2) the copy or drawing of the layout-design;

(3) where the layout-design has been put into commercial exploitation, the sample of the integrated circuit incorporating the layout-design;

(4) other materials required by the intellectual property administration department of the State Council.

 

Article 17. For any layout-design, if no application for registration has been filed with the intellectual property administration department of the State Council within two years from the date on which it was first commercially exploited anywhere in the world, it shall no longer be registered by the intellectual property administration department of the State Council.

 

Article 18. Where it is found after preliminary examination that there is no cause for rejection of the application for registration of layout-design, the intellectual property administration department of the State Council shall register it, issue the registration certificate and announce it.

 

Article 19. Where any applicant for registration of layout-design is not satisfied with the decision of the intellectual property administration department of the State Council rejecting the application, it or he may, within three months from the date of receipt of the notification, request the intellectual property administration department of the State Council to make a reexamination. The intellectual property administration department of the State Council shall, after reexamination, make a decision and notify the applicant for registration of layout-design. Where the applicant for registration of layout-design is still not satisfied with the decision of reexamination of the intellectual property administration department of the State Council, it or he may, within three months from the date of receipt of the notification, institute legal proceedings in the people's court.

 

Article 20. Where after the registration of a layout-design, the intellectual property administration department of the State Council finds that the registration does not comply with the provisions of these Regulations, it shall revoke the registration, notify the applicant and announce it. Where the right holder of the layout-design is not satisfied with the decision of the intellectual property administration department of the State Council revoking the registration of layout-design, it or he may, within three months from receipt of the notification, institute legal proceedings in the people's court.

 

Article 21. Until the announcement of the registration of layout-design, staff members of the intellectual property administration department of the State Council have the duty to keep its contents secret.

 

CHAPTER IV EXPLOITATION OF THE EXCLUSIVE RIGHT OF LAYOUT-DESIGN

Article 22. The right holder of layout-design may assign its or his exclusive right or license other persons to use its or his layout-design.

Where the exclusive right of layout-design is assigned, the parties shall conclude a written contract and register it with the intellectual property administration department of the State Council. The intellectual property administration department of the State Council shall announce the registration. The assignment shall take effect as of the date of registration.

Where a layout-design is to be licensed for others to use, the parties shall conclude a written contract.

 

Article 23. A layout-design may be used without authorization of the right holder of the layout-design and without any payment of remuneration under any of the following circumstances,

(1) reproducing the layout-design under protection for private purposes or for the sole purpose of evaluation, analysis, research or teaching;

(2)creating a layout-design with originality on the basis of the evaluation or analysis of the layout-design under protection referred to in the preceding paragraph;

(3)reproducing or commercially exploiting a layout-design made independently by oneself that is identical with a layout-design of another person.

 

Article 24. For any layout-design under protection, integrated circuit incorporating the layout-design, or article incorporating such integrated circuits, so long as they have been put on the market by the right holder of the layout-design, or with its or his consent, anyone may exploit them for commercial purposes without the authorization of, nor payment of remuneration to, the right holder of layout-design.

 

Article 25. In cases of national emergency, or in any extraordinary state of affairs, or for the purposes of public interests, or where it is determined according to Law by the people's court or the unfair competition supervision department that there is unfair competition on the part of the right-holder of layout-design and there is a need to give remedy, the intellectual property administration department of the State Council may grant a non-voluntary license to exploit the layout-design to remedy the unfair competition practice.

 

Article 26. Any decision made by the intellectual property administration department of the State Council granting a non-voluntary license to exploit a layout-design shall be notified promptly to the right holder of the layout-design.

In the decision granting a non-voluntary license to exploit a layout-design, the scope and duration of the exploitation shall be specified on the basis of the reasons justifying the granting. The scope shall be limited to non-commercial use for public purposes or to the remedy required as determined according to Law by the people's court or unfair competition supervision department for the unfair competition practice of the right holder of layout-design.

Where the circumstances which lead to such non-voluntary license cease to exist and are unlikely to recur, the intellectual property administration department of the State Council shall, after reviewing upon the request of the right holder of layout-design, make decision to terminate the non-voluntary license.

 

Article 27. Any natural person, legal person or other organization that is granted non-voluntary license to exploit a layout-design shall not have an exclusive right to exploit it and shall not have the right to authorize exploitation by any other person. 

Article 28. Any natural person, legal person or other organization that is granted non-voluntary license shall pay to the right holder of layout-design a reasonable exploitation fee, the amount of which shall be fixed by both parties through consultation; where the parties fail to reach an agreement, the intellectual property administration department of the State Council shall adjudicate.

 

Article 29. Where the right holder of layout-design is not satisfied with the decision of the intellectual property administration department of the State Council granting a non-voluntary license to exploit the layout-design, or where the right holder of layout-design, the natural person, legal person or other organization that is granted non-voluntary license is not satisfied with the ruling made by the intellectual property administration department of the State Council regarding the fee payable for exploitation, it or he may, within three months from the date of receipt of notification, institute legal proceedings in the people's court.

 

CHAPTER V LEGAL LIABILITY

Article 30. Except where otherwise prescribed in these Regulations, without the authorization of the right holder of layout-design, any of the following infringing acts shall be stopped immediately, and the infringer shall be liable to compensation for the damage:

(1) reproducing the whole or any original part of a layout-design under protection;

(2) importing, selling or providing in any other form, for commercial purposes, any layout-design under protection, integrated circuit incorporating the layout-design or article incorporating such an integrated circuit.

The amount of compensation for the damage caused by the infringement of the exclusive right of layout-design shall be assessed on the basis of the profits which the infringer has earned through the infringement or the losses which the right holder of layout-design has suffered including the reasonable expenses of the infringed party for stopping the infringement.

 

Article 31. Where a dispute arises as a result of the exploitation of a layout-design without the authorization of the right holder of the layout-design, that is, the infringement of the exclusive right of layout-design, it shall be settled through consultation by the parties. Where the parties are not willing to or fails to settle the dispute through consultation, the right holder of the layout-design or any interested party may institute legal proceedings in the people's court, or request the intellectual property administration department of the State Council to handle the matter. When the intellectual property administration department of the State Council handling the matter considers that the infringement is established, it may order the infringer to stop the infringing act immediately, and confiscate or destroy the infringing products or articles. If the infringer is not satisfied with the disposal, he may, within 15 days from the date of receipt of the disposal notification, institute legal proceedings in the people's court in accordance with the Administration Procedure Law of the People's Republic of China, if, within the said time limit, the infringer fails to institute legal proceedings and refuses to stop the infringing act, the intellectual property administration department of the State Council may apply to the people's court for compulsory execution. The intellectual property administration department of the State Council may, upon the request of the parties, mediate on the amount of compensation for the damage caused by the infringement of the exclusive right of layout-design; if the mediation fails, the parties may institute legal proceedings in the people's court in accordance with the Civil Procedure Law of the People's Republic of China.

 

Article 32. Where any right holder of layout-design or interested party has evidence to prove that another person is infringing or will soon infringe its or his exclusive right and that if such infringing act is not prevented from occurring in time, it is likely to cause irreparable harm to its or his legitimate rights, it or he may, before any instituting legal proceedings, request the people's court to adopt measures for ordering the suspension of relevant acts and the preservation of property.

 

Article 33. Where anyone commercially exploits integrated circuits incorporating an protected layout-design or articles incorporating such integrated circuits without knowing or without reasonable grounds to be expected to know at the time when it or he obtains these integrated circuits or the articles that they are incorporated with illegally- reproduced layout-designs, it or he shall not be deemed as infringing the exclusive right of layout-design.

After being notified that the integrated circuit or article is incorporated with illegally-reproduced layout-design, the person referred to in the preceding paragraph may, subject to payment of reasonable compensation to the right holder of the layout-design, continue to commercially exploit the goods in stock or the goods ordered by him before the notification.

 

Article 34. Where any staff member of the intellectual property administration department of the State Council, in his work of layout-design registration and administration, neglects his duty, abuses his power or commit illegalities for personal gains or by fraudulent means shall be investigated for criminal liability in accordance with law if a crime is constituted, if the case is not serious enough to constitute a crime, he shall be given disciplinary sanction in accordance with law.

 

CHAPTER VI SUPPLEMENTARY PROVISIONS

Article 35. Any application for registration of a layout-design and any other formalities shall be subject to payment of fees as prescribed. The standard of the fees shall be fixed by the price administration department of the State Council and the intellectual property administration department of the State Council, and shall be announced by the intellectual property administration department of the State Council.

 

Article 36. These Regulations shall enter into force as of October 1, 2001.

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