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

Chapter I  General Provisions

Rule 1 Aims

With a view to protecting the exclusive right of layout-design of integrated circuits (hereinafter referred to as the layout-design), and promoting the progress and innovation of integrated circuit technology in China, these Implementing Regulations (hereinafter referred to as the Implementing Regulations) are hereby formulated as follows in accordance with the Regulations for the Protection of Layout-design of Integrated Circuits (hereinafter referred to as the Regulations).

 

Rule 2 Registry

The Patent Administrative Department under the State Council mentioned in the Regulations refers to the State Intellectual Property Office.

 

Rule 3 Required Mode for Going through the Formal Procedures

All the documents provided for under the Regulations and the Implementing Regulations shall be prepared and handled in written form or in any other form otherwise provided for by the State Intellectual Property Office.

 

Rule 4 Agency

Where any Chinese entity or person applies for registration of, and handles any matter relating thereto, its or his layout-design in China, it or he may appoint an agency for these purposes.

Where any foreigner, foreign enterprise or other foreign organisation that does not have a habitual residence or business establish-ment in China applies for registration of its or his layout-design and handles any matter relating thereto, it or he shall appoint an agency designated by the State Intellectual Property Office to handle the matter.

 

Rule 5 Application Document and Determination of Date of filing

Where any entity or person applies for the registration of its or his layout-design with the State Intellectual Property Office, shall submit the application form for layout-design registration and a copy or drawing of the layout-design; and an integrated circuit specimen incorporating the layout-design shall also be submitted if the layout-design has been put into commercial exploitation.

The date on which the State Intellectual Property Office receives said layout-design application document in the foregoing paragraph is the date of filing. If the application document is sent by mail, the date of the postmark it bears is the date of filing.

 

Rule 6 Language of Documents

All the documents submitted according to the Regulations and the Implementing Regulations shall be in Chinese. Where there are prescribed uniform standard technical terms in China, these standard terms shall be used; where foreign personal names, place names and technical terms have no uniform Chinese translation, their original language shall be indicated.

Where the various certificates and certification documents submitted according to the Regulations and the Implementing Regulations, the State Intellectual Property Office may, when finding it necessary, require the interested party to furnish the Chinese translation thereof within the fixed time limit; failure to do so after the expiration of the time limit is deemed not to have submitted the certificates and certification documents.

 

Rule 7 Delivery and Service of Documents

As for any documents sent to the State Intellectual Property Office by mail, the date of the postmark shall be the date of delivery. Where the date of postmark is not clearly shown, the date on which the State Intellectual Property Office receives the documents is the date of delivery, except that the interested party can prove otherwise.

The documents from the State Intellectual Property Office may be sent to an interested party by mail, by direct delivery, or by any other means. Where an interested party appoints a patent agency, the documents are sent to his or its agency; Where no patent agency is appointed, the documents are sent to the person indicated in the application form to be contacted.

The various documents posted by the State Intellectual Property Office are deemed to have reached the interested party on or after 15th day from the date of sending them by mail.

As for the documents that shall be directly delivered according to the provisions by the State Intellectual Property Office, the date of delivery shall be the date of service.

Where a document the addressee of which is not clearly indicated cannot be sent by mail, it may be sent to the interested party through public notice. The document shall be deemed to have been serred on and after the last day of the month from the date of public notice.

 

Rule 8 Computation of Time limit

The first day of all the time limits fixed according to the Regulations and the Implementing Regulations is excluded therefrom. Where a time limit is counted in year or month, the correspounding date of the last month is the date of expiration of the time limit; where there is no such date, the last day of the month shall be the date of expiration of the time limit; where the date of expiration of the time limit is a statutory holiday, the first working day after the holiday shall be the date of expiration of the time limit.

 

Rule 9 Restoration of Rights and Extension of Time Limit

Where any interested party loses its or his right for failure to meet the time limit prescribed in the Implementing Regulations or fixed by the State Intellectual Property Office due to irresistable causes, it or he may, within 2 months starting from the date of elimination of the barrier or within 2 years, at the latest, from the date of the expiration of the time limit, explain the reason to, and submit the relevant proofs to the State Intellectual Property Office and request to restore its or his right. 

Where any interested party loses its or his right for failure to meet the time limit prescribed in the Implementing Regulations or fixed by the State Intellectual Property Office with justification, it or he may, within 2 months starting from the date of receipt of the notification of the State Intellectual Property Office, explain the reason to the State Intellectual Property Office, and request it to restore its or his right.

Where any interested party requests for extension of a time limit fixed by the State Intellectual Property Office, it or he shall, before the expiration of the time limit, explain the reason to, and go through the relevant procedures at the State Intellectual Property Office.

The time limit prescribed in these Implementing Regulations shall not be extendable by request.

 

Rule 10 Joint Ownership

Where a layout-design is jointly invented by two or more entities or persons, the inventors shall jointly apply for the registration thereof; where a contract or an agreement is concluded, the contract or agreement shall be complied with.

Where a jointly owned layout-design is revolved, each of the holders of the right of the layout-design shall, without the authorisation of the other holder(s) of the right of the layout-design, not assign and pledge its or his part of the right or enter into any monopoliged or exclusive licensing contract with another person relating thereto.

 

Rule 11 Assignment of Exclusive Right to Foreigner

Where any Chinese entity or person assigns the exclusive right of a layout-design, it or he shall submit document indicating that the relevant competent department under the State Council approves the assignment when registering the assignment with the State Intellectual Property Office.

Where the exclusive right of a layout-design is transferred, the interested party shall, by furnishing the relevent certification or legal document, go through the procedure for any bibliographic alteration with the State Intellectual Property Office.

 

Chapter II  Application for Registration of Layout-design and Examination Thereof.

Rule 12 Application Documents

Where an application for registration of layout-design is filed in writing, the layout-design application form in duplicate and a copy or drawing of the layout-design shall be submitted to the State Intellectual Property Office.

Where an application for registration of layout-design is filed in any other form provided for by the State Intellectual Property Office, the applicant shall comply with the provision.

Where the applicant appoints a patent agency to file the application for registration of layout-design with the State Intellectual Property Office and go through other formalities, it or he shall simultaneously submit the power of attorney with express scope of the power entrusted.

Where there are two or more applicants and no patent agency is appointed, the first applicant indicated in the application form shall be their representative, except that it is otherwise stated therein.

 

Rule 13 Application Form

Following information shall be indicated in the application form for registration of the layout-design:

(1) Name, or title, address or place of residence of the applicant;

(2) Nationality of the applicant;

(3) Title of the layout-design;

(4) Name or title of the inventor of the layout-design;

(5) Date on which the invention of the layout-design is completed;

(6) Category of the integrated circuits in which the layout-design is incorporated;

(7) Where the applicant appoints a patent agency, it or he shall indicate the relevant matters; where it or he does not appoints a patent agency, it or he shall indicate the name, address, postal code and telephone number of the person to be contacted;

(8) Date on which an act of commercial exploitation takes place, where the layout-design has been put into commercial exploitation referred to in Rule 17 of the Regulations;

(9) Where the application for registration of the layout-design contains confidential information, the copy or drawing of the layer of drawings or the page number and the total number of such pages of the drawings containing the confidential information;

(10) Signature or seal of the applicant or its or his patent agency;

(11) A checklist of the items contained in the application document;

(12) Supplementary documents and a checklist of the specimens; and

(13) Any other matters required to be indicated.

 

Rule 14 Copy or Drawing

The copy or drawing of the layout-design submitted according to Rule 16 of the Implementing Regulations shall meet the following requirements:

(1) The paper size of the copy or drawing shall, at least, be 20 or more times the size of the integrated circuits made by incorporating the layout-design; the applicant may, at the same time, furnish the electronic version of the copy or drawing; where the electronic version of the copy or drawing is submitted, it shall contain all the information of the layout-design, with indication of the data format of the document;

(2) Where the copy or drawing contains several pages, they shall be arranged in serial number, and a list of the contents attached;

(3) The page of copy or drawing shall be of the A4 size; if it is larger than the A4 paper size, it shall be folded in the A4 size; and

(4) Brief explanations may be attached to the copy or drawing to indicate the structure, technology, function of the layout-design of the integrated circuits or any other matters that should be explained.

 

Rule 15 Application Relating to Confidential Information

Where a layout-design is not put into commercial exploitation before the filing date, the application for registration thereof may contain confidential information, and the proportion comprising such information shall not, at most, exceed 50% of the total area of the layout-design of the integrated circuits. The copy or drawing of the layer of drawings or the page number and the total number of such pages of the drawings containing the confidential information shall be the same as what are indicated in the application form for registration of the layout-design.

Where an application for registration of the layout-design contains confidential information, the copy or drawing of the layer of drawings containing the confidential information shall be submitted in a separate bag for holding confidential files. Unless it is made necessary by a judicial or administrative infringement proceeding, no one is allowed to consult or copy the confidential information.

 

Rule 16 Specimens of Integrated Circuits

Where a layout-design is put into commercial exploitation before the filing date, four specimens of the integrated circuits incorporating the layout-design shall be submitted when filing an application for registration, and they shall meet the requirements as follows:

(1) The submitted 4 specimens of the integrated circuits shall be put in special containers capable of keeping them from any damage, and a filled form uniformly prepared by the State Intellectual Property Office be submitted together therewith;

(2) On the surface of the containers shall be indicated the name of the applicant, the number of application and the title of the integrated circuits; and

(3) The specimens of the integrated circuits put in the containers shall be appropriately fixed, free from any damage and can be kept for at least ten years in a moisture-free container.

 

Rule 17 Non-acceptance

Where the following circumstances arise in respect of an application for registration of a layout-design, the State Intellectual Property Office does not accept it and notifies the applicant of the non-acceptance:

(1) Where the application form for layout-design registration and a copy or drawing of the layout-design is not submitted, where a specimen of the integrated circuit is not submitted but it has been put into commercial exploitation, or where the submission is not consistent with the preceding items;

(2) The foreign applicant comes from a country which has not concluded an agreement on the protection of the layout-design with China or which has not acceded, with China, to an international treaty on the protection of the layout-design;

(3) The related layout-design is not protectable under Rule 12 of the Regulations;

(4) The related layout-design is not registerable under Rule 17 of the Regulations;

(5) The application document is not in Chinese;

(6) The application is not clear in category, or it is difficult to determine that it is a layout-design;

(7) No agency is appointed according to stipulation; or

(8) The application form for layout-design registration is not properly filled in.

 

Rule 18 Supplement and Amendment of Documents

Besides the circumstances for which applications are not acceptable under Rule 17 of the Implementing Regulations, where an application document does not meet the requirements set forth in the Regulations and the Implementing Regulations, the applicant shall make rectification within two months from the date of receipt of the office action of the State Intellectual Property Office. The rectification shall be made according to the office action. Where no response is made after the expiration of the time limit, the application shall be deemed to have been withdrawn.

Where the application document still does not meet the requirement of the Regulations and the Implementing Regulations after the applicant makes the rectification according to the office action of the State Intellectual Property Office, the State Intellectual Property Office shall decide to reject it.

The State Intellectual Property Office may, on its own initiative, correct obvious lexical and graphical errors in a layout-design application document. Where it makes correction of the kind, the State Intellectual Property Office shall notify the applicant thereof.

 

Rule 19 Rejection of Application

Except that it is otherwise provided for in Rule 18, paragraph two, of the Implementing Regulations, one of the following circumstances arises concerning the layout-design in respect of which an application is filed for registration, the State Intellectual Property Office shall make a decision on the rejection and state the grounds on which the decision is made:

(1) It is obviously not in conformity with the provision of Article 2 (1) and (2) of the Regulations; or

(2) It is obviously not in conformity with the provision of Article 5 the Regulations.

 

Rule 20 Taking Effect of Exclusive Right of Layout-design

Where no ground for rejection is found in the preliminary examination of an application for registration of a layout-design, the State Intellectual Property Office shall issue the Certificate of Registration of Layout-design, and announce it on the website of the State Intellectual Property Office, or in the China Intellectual Property Gazette. The exclusive right of the layout-design takes effect on the filing date.

 

Rule 21 Certificate of Registration of Layout-design

The Certificate of Registration of Layout-design issued by the State Intellectual Property Office shall comprise the following:

(1) Name or title and address of the holder of the right of the layout-design;

(2) Title of the layout-design;

(3) Time when the layout-design was put into commercial exploitation for the first time, where it was put into commercial exploitation before the filing date;

(4) Date of filing the application for registration of the layout-design and date of completion of the invention of the layout-design;

(5) Date of issuance of the Certificate of Registration of Layout-design;

(6) Number of registration of the layout-design: and

(7) Seal of the State Intellectual Property Office and the signation of the head thereof.

 

Rule 22 Correction

The State Intellectual Property Office shall promptly correct any errors in the Layout-design Gazette once found, and publish the correction.

 

Chapter III  Reexamination and Reconsideration of Applications for Registration of Layout-design and Revocation of Exclusive Right.

Rule 23 Reexamination and Revocation Organisation

The Patent Reexamination Board of the State Intellectual Property Office (hereinafter referred to as the Patent Reexamination Board) is responsible for the examination of the reexamination requests filed out of dissatisfaction with the decision made by the State Intellectual Property Office on the rejection of its or his layout-design and for the examination of the cases of revocation of the exclusive rights of layout-design.

 

Rule 24 Request for Reexamination

Where one requests the Patent Reexamination Board for reexamination, it or he shall file a request for reexamination, state the reason, and furnish relevant proofs if necessary. Where the reexamination request does not comply with the relevant provision of Article 19 of the Regulations, the Patent Reexamination Board shall not accept it.

Where a reexamination request is not in the prescribed format, the person making request for the reexamination shall make rectification within the time limit fixed by the Patent Reexamination Board; where the rectification is not made after the expiration of the time limit, the request for the reexamination shall be deemed not to have been filed.

 

Rule 25 Amendment of Documents during Reexamination Proceeding

The person making request for the reexamination may amend the layout-design application documents when it or he files a reexamination request or responds to the notice of reexamination by the Patent Reexamination Board; but the amendment shall be limited to the elimination of defects pointed out in the rejection decision, or in the notice of reexamination.

The amended application document shall be submitted in duplicate.

 

Rule 26 Reexamination Decision

Where the Patent Reexamination Board holds, upon its examination, that the request for reexamination of a layout-design registration application does not comply with the Regulations or the Implementing Regulations, it shall notify the person making request for the reexamination, requesting it or him to make its or his observation within the fixed time limit. Where no response is made after the expiration of the time limit, the have request for the reexamination shall be deemed to hvae been withdrawn; where the Patent Reexamination Board considers that the application still does not comply with the Regulations or the Implementing Regulations, after making the observations or amendment, it shall make its reexamination decision to uphold the rejection decision.

Where the Patent Reexamination Board holds, upon its examination, that the decision on rejection does not comply with the Regulations or the Implementing Regulations, or that the amended application document has eliminated the defects pointed out in the decision on rejection, it shall revoke the initial rejection decision and notify the original examination department to register the application and announce the registration.

In the reexamination decision, the Patent Reexamination Board shall indicate the grounds on which the reexamination decision is based, and notify the layout-design registration applicant.

 

Rule 27 Withdrawal of Reexamination Request

The person making the request for reexamination may withdraw its or his request for reexamination before the Patent Reexamination Board makes its decision.

Where the person making the request for reexamination withdraws its or his request for reexamination before the Patent Reexamination Board makes its decision, the reexamination proceeding terminates.

 

Rule 28 Reconsideration Request

Where any interested party is not satisfied or in dispute with one of the following administrative actions made by the State Intellectual Property Office, it or he may file an application for reconsideration with the administrative reconsideration department of the State Intellectual Property Office:

(1) Not accepting the layout-design application;

(2) Deeming a layout-design application to have been withdrawn;

(3) Not allowing the request for restoration of relevant rights; or

(4) Any other specific administrative action that infringes the lawful rights and interests of an interested party.

 

Rule 29 Revocation Proceeding

Where the exclusive right of the layout-design is found not in conformity with the provisions of Articles 2 (1) or (2), 3, 4, 5, 12 or 17 of the Regulations after the publication of the registration of the layout-design, the Patent Reexamination Board shall revoke the exclusive right of the layout-design.

Where the exclusive right of the layout-design is revoked, the Patent Reexamination Board shall first notify the holder of the right of the layout-design, requesting it or him to make observations within the fixed time limit. its or his Failure to do so after the expiration of the time limit does not affect the decision by the Patent Reexamination Board to revoke the exclusive right of the layout-design.

The Patent Reexamination Board shall indicate, in the decision to revoke the exclusive right of the layout-design, the grounds the decision is based on, and notify the holder of the right of the layout-design.

 

Rule 30 Publication of Revocation Decision

Where no proceedings are instituted in the People's Court within the prescribed time limit in respect of the decision by the Patent Reexamination Board to revoke the exclusive right of the layout-design, or after the ruling of the People's Court to uphold the decision by the Patent Reexamination Board to revoke the exclusive right of the layout-design takes effect, the State Intellectual Property Office shall publish the decision on revocation of the exclusive right of the layout-design on its website or in the China Intellectual Property Gazette.

The revoked exclusive right of the layout-design shall be deemed to have never existed.

 

Chapter IV  Protection of Exclusive Right of Layout-design

Rule 31 Abandonment of Exclusive Right of Layout-design

Any holder of the right of a layout-design may, before the expiration of the term of protection of its or his exclusive right of layout-design, file a statement with the State Intellectual Property Office to abandon the exclusive right.

Where the exclusive right of the layout-design is licensed for another person to exploit or is pledged, the abandonment thereof shall be done with the consent of the licensee or the pledgee.

The abandonment of the exclusive right of the layout-design shall be registered with and published by the State Intellectual Property Office.

 

Rule 32 Requirements for the State Intellectual Property Office to Accept Cases of Disputes over Infringement

Where a request is filed according to the provision of Article 31 of the Regulations for the State Intellectual Property Office to handle a dispute arising from infringement of the exclusive right of a layout-design, the request shall meet the following requirements:

(1) The layout-design has been registered and the registration thereof published;

(2) The person making the request is the holder of right of the layout-design or the entity or person directly interested in the infringement dispute;

(3) The respondent is clearly identified;

(4) The matter and specific fact and reason of the request are clear; and

(5) Neither party has instituted legal proceedings in the People's Court as to the infringement dispute.

 

Rule 33 Suspension and Resumption of Relevant Proceedings

Where an interested party who runs into a dispute over the right to apply for registration of a layout-design or over the ownership of the exclusive right of the layout-design has instituted legal proceedings in the People's Court, it or he may request the State Intellectual Property Office to suspend the relevant proceeding.

Where any party requesting for suspension of the relevant proceeding according to the preceding provision, it or he shall file a request with the State Intellectual Property Office and submit a copy of the relevant document showing the People's Court's acceptance of the case.

After the ruling of the People's Court takes effect, the interested party shall go through the procedure for resuming the relevant proceeding at the State Intellectual Property Office. Where a case of dispute over the right to apply for registration of a layout-design or over the ownership of the exclusive right of the layout-design is not closed within one year from the date of filing the request and it is necessary to continue to suspend the relevant proceeding, the person making the request shall request for extension of the suspension within the time limit. Where no such request is made for the extension after the expiration of the time limit, the State Intellectual Property Office acts on its own to resume the relevant proceeding.

Where the People's Court rules, in its hearing of a civil case, to take preservation measures with regard to the exclusive right of a layout-design, the State Intellectual Property Office, when assisting the execution, suspends the procedure relating to the preserved exclusive right of the layout-design. Where, upon expiration of the term of the preservation, the People's Court does not rule to go on with the preservation measures, the State Intellectual Property Office acts on its own to resume the relevant proceeding. .

 

Chapter V  Fees

Rule 34 Required Fees

Where an application is filed with the State Intellectual Property Office for registration of the layout-design, or to go through any other procedure, fees as follows shall be paid:

(1) Layout-design registration fee;

(2) Fees for bibliographic alteration, for a request for extension of a time limit and for a request for restoration of a right;

(3) Fee for a request for reexamination; and

(4) Fees for a request for grant of non-voluntary license and for a request for ruling on the royalties of the non-voluntary license.

The amount of the foregoing fees is to be fixed by the Price Administrative Department of the State Council in conjunction with the State Intellectual Property Office.

 

Rule 35 Formalities for Paying Fees

The fees required in the Regulations and the Implementing Regulations may be paid directly to the State Intellectual Property Office, or by postal or bank remittance, or in any other manner provided for by the State Intellectual Property Office.

Where the fees are paid by postal or bank remittance, on the money order to the State Intellectual Property Office shall be indicated, at least, the correct application number and the title of the fee paid. Non-compliance with this provision shall be deemed not to have gone through the formalities for paying the fees.

Where a fee is directly paid to the State Intellectual Property Office, the day on which the fee is paid is the date of payment; where the fee is paid by postal remittance, the day of postmark is the the date of payment; where the fee is paid by bank remittance, the day on which the actual bank remittance is the date of payment. Where there are more than 15 days from the date of remittance to the date on which the State Intellectual Property Office receives it, however, the day on which the State Intellectual Property Office receives the fee is the date of payment except that the post office or bank proves otherwise.

Where the layout-design registration fee is overpaid, repaid or erroneously paid, the interested party may request the State Intellectual Property Office to return the payment, but the request shall be made within one year from date of payment.

 

Rule 36 Time Limit for Paying Fees

An applicant shall pay the layout-design registration fee within 2 months after the receipt of the acceptance notification; where the fee is not paid or not paid in full after the expiration of the time limit, the application shall be deemed to have been withdrawn.

Where an interested party requests for restoration of its or his right or for reexamination, it or he shall pay the fee within the relevant time limit prescribed in the Regulations and the Implementing Regulations; where the fee is not paid or not paid in full after the expiration of the time limit, the request shall be deemed not to have been made.

The fees for bibliographic alteration, and the fees for a request for grant of non-voluntary license and for a request for ruling on the royalties of the non-voluntary license shall be paid within 1 month from the date of filing the request; the fee for a request for extension of a time limit shall be paid before the relevant time limit expires; where the fee is not paid or not paid in full after the expiration of the time limit, the request shall be deemed not to have been made.

 

Chapter VI  Supplementary Provisions

Rule 37 Layout-design Register

The State Intellectual Property Office establishes the layout-design register in order to keep the following on record:

(1) Name or title, nationality and address of the holders of right of the layout-design and any change thereof;

(2) Registration of the layout-design;

(3) Transfer and inheritance of the exclusive right of the layout-design;

(4) Abandonment of the exclusive right of the layout-design;

(5) Hypothecation, preservation and transfer of the exclusive right of the layout-design;

(6) Revocation of the exclusive right of the layout-design;

(7) Termination of the exclusive right of the layout-design;

(8) Restoration of the exclusive right of the layout-design; and

(9) Non-voluntary license for exploitation of the exclusive right of the layout-design.

 

Rule 38 Publication of Layout-design

The State Intellectual Property Office shall publish, on a regular basis, layout-design registration on its website and the China Intellectual Property Gazette to make known the following contents:

(1) Bibliographic alterations in the Layout-design Register;

(2) Notice to the interested parties the addresses of which are not clearly available;

(3) Corrections made by the State Intellectual Property Office; and

(4) Any other relevant matters.

 

Rule 39 Consultation and Reproduction by the Public

After the publication of the registration of the layout-design, the public may request to consult the Layout-design Register, or request the State Intellectual Property Office for a reproduction thereof. The public may also request to consult the copy or drawings in paper form of the layout-design.

As for said electronic version of the copy or drawing in Rule 14 of these Implementing Regulations, no one is allowed to consult or reproduce, unless it is necessary in judicial or administrative proceedings involving infringement.

 

Rule 40 Treatment of Invalid Files

Where a layout-design application is withdrawn, deemed to have been withdrawn or rejected, and where a layout-design exclusive right is announced to have been abandoned, revoked or terminated, the relevant files of the layout-design application or exclusive right shall not be kept after the expiration of three years from the date on which the application or exclusive right becomes invalid.

 

Rule 41 Postal Delivery of Documents

Any document of the relevant application or layout-design exclusive right to the State Intellectual Property Office shall be posted as registered mail, and each mail shall only contain the same application document. It shall be made sure that the posted copy or drawings in electronic form and any specimen of the integrated circuits are free from damage thereto in the course of the postal delivery.

 

Rule 42 Interpretation of the Implementing Regulations

The State Intellectual Property Office is responsible for the interpretation of the Implementing Regulations.

 

Rule 43 Date of Entry into Force of the Implementing Regulations

The Implementing Regulations shall enter into force on 1 October 2001.

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