Legislative Purpose
The protection system for layout-designs of integrated circuits is formulated in order to protect the exclusive rights of layout-design of integrated circuits, to encourage innovation of integrated circuits technology and to promote the development of science and technology.
Legislation and Amendments
The Regulations on the Protection of Layout-Designs of Integrated Circuits was promulgated on April 2, 2001 by the State Council, and took effect as of October 1, 2001.
The Rules for the Regulations on the Protection of Layout-Designs of Integrated Circuits was promulgated on September 18, 2001 by the State Council, and took effect as of October 1, 2001.
Layout-Designs of Integrated Circuits
"Layout-design of integrated circuit" (hereinafter referred to as layout-design) means a three-dimensional disposition of two or more elements, at least one of which is an active element, and some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for the manufacture of an integrated circuit.
The above mentioned "integrated circuit" means a semiconductor integrated circuit, that is, a product, in its intermediate or final form, which uses semiconductor material as its chip, in and/or on which two or more elements, at least one of which is an active element, and some or all of the interconnections are integrally formed and which is intended to perform a certain electronic function.
"Rights holder of layout-design" means the natural person, the legal person or any other organization that, according to the Regulations, is entitled to the exclusive rights of a layout-design.
"Reproduction" of a layout-design means the act of reproducing a layout-design or of reproducing an integrated circuit incorporating the layout-design.
“Commercial exploitation” of lay-out design means the act of importing, selling or otherwise distributing for commercial purposes a protected layout-design, or an integrated circuit incorporating such a layout-design, or an article incorporating such an integrated circuit.
Layout-Design Administration Authority
The National intellectual Property Administration of China (“CNIPA”) is responsible for the relevant administrative work concerning the exclusive rights of layout-design in accordance with these Regulations
Protected Layout-Designs
Any layout-design which is to be protected shall possess such originality that the layout-design is the result of the creator’s own intellectual effort, and at the time of its creation this layout-design is not conventional among creators of layout-designs and manufacturers of integrated circuits.
Where a layout-design which is to be protected consists of several conventional layout-designs, the combination of these layout-designs taken as a whole shall be in compliance with the requirements referred to in the preceding paragraph.
The protection of layout-designs under these Regulations shall not extend to ideas, processing procedures, methods of operations or mathematical concepts, etc.
Exclusive Rights of Layout-design
Any layout-design created by a Chinese natural person, legal person or other organization shall be eligible for the exclusive rights of layout-design in accordance with these Regulations.
Any layout-design created by a foreigner shall, where it is first commercially exploited in the territory of the People’s Republic of China, be eligible for the exclusive rights of layout-design in accordance with these Regulations.
Any layout-design created by a foreigner shall be eligible for the exclusive rights of layout-design in accordance with these Regulations, if the country to which the foreigner belongs has concluded an agreement with China to protect layout-designs or both the country to which the foreigner belongs and China are parties to an international treaty concerning the protection of layout-designs.
The rights holder of layout-design shall enjoy the following exclusive rights:
(1) reproducing a protected layout-design in its entirety or any part thereof that complies with the requirement of originality;
(2) commercially exploiting a protected layout-design, an integrated circuit incorporating a protected layout-design, or an article incorporating such an integrated circuit.
The exclusive rights of layout-designs are acquired after their being registered with the intellectual property administration department of the State Council.
Any unregistered layout-design shall not be protected under these Regulations.
Ownership of Rights
The exclusive rights of layout-design shall belong to their creator, except as otherwise prescribed 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 bear responsibility for such layout-design, that legal person or other organization shall be the creator.
Where a layout-design is created by a natural person, that person shall be the creator.
Where a layout-design is created jointly by two or more natural persons, legal persons or other organizations, the ownership of the exclusive rights shall be agreed upon by the joint creators; in the absence of such an agreement or where the agreement is not clear, the exclusive rights shall be owned jointly by the creators.
Where a layout-design is created in execution of a commission, the ownership of the exclusive rights shall be agreed upon by the commissioning party and the commissioned party; in the absence of such an agreement or where the agreement is not clear, the exclusive rights shall be owned by the commissioned party.
Exercise of Joint Rights
Where a jointly owned layout-design is revolved, each of the rights holders of the layout-design shall, without the authorization of the other rights holder(s) of the layout-design, not assign or pledge its or his or her part of the rights or enter into any exclusive or sole licensing contract relating thereto with another person.
Inheritance of Rights
Where the exclusive rights of layout-design belong to a natural person, the exclusive rights shall, after the death of the natural person and within the protection term as prescribed in these Regulations, be transferred in accordance with the provisions of the Succession Law.
Where the exclusive rights of layout-design belong to a legal person or other organization, the exclusive rights shall, after the legal person or other organization is reorganized or ceases to exist and within the term of protection as prescribed 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 domain.
Protection Term of Exclusive Rights of Layout-Design
The protection term of the exclusive rights of layout-design shall be 10 years counted from the date of filing an 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 15 years after the date of the completion of its creation.
Registration of Layout-Designs
The CNIPA is responsible for the registration of layout-design and receives applications for layout-design registration.
Where a layout-design for which an application for registration is filed relates to the security or other vital interests of the State and is required to be kept confidential, the application shall be handled in accordance with the relevant provisions of the State.
Where no application for the registration of a layout-design has been filed with the CNIPA within two years from the date on which it was first commercially exploited anywhere in the world, the CNIPA shall refuse to register such layout-design.
Agency
Where any Chinese entity or person applies for registration of its or his or her layout-design in China and handles any matter relating to the layout-design, it or he or she may appoint a patent agency to do so on its or his or her behalf.
Where any foreigner, foreign enterprise or other foreign organization that does not have a habitual residence or business establishment in China applies for registration of its or his or her layout-design in China and handles any matter relating to the layout-design, it or he or she shall appoint a patent agency designated by the CNIPA to do so on its or his or her behalf.
Filing of Applications
Where an application for registration of layout-design is filed, the following shall be submitted:
(1) an application form for registration of layout-design;
(2) a reproduction or drawing of the layout-design;
(3) where the layout-design has been put into commercial exploitation, a sample of the integrated circuit incorporating the layout-design;
(4) other materials required by the CNIPA.
An application form shall include the following:
(1) the information about the applicant;
(2) the title of the layout-design;
(3) the name or title of the creator of the layout-design;
(4) the date on which the creation of the layout-design is completed;
(5) the category of the integrated circuits in which the layout-design is incorporated;
(6) the date on which an act of commercial exploitation takes place, where the layout-design has been put into commercial exploitation;
(7) the page number of the reproduction or drawing of the layer of drawings containing confidential information and total number of such pages, where the application for registration of the layout-design contains confidential information.
The paper size of the reproduction or drawing shall be at least 20 or more times the size of the integrated circuits made by incorporating the layout-design; the applicant may, at the same time, provide an electronic version of the reproduction or drawing; where an electronic version of the reproduction or drawing is submitted, it shall contain all the information of the layout-design, with indication of the data format of the document. Brief specification may be attached to the reproduction or drawing to indicate the structure, technology, functions of the layout-design of the integrated circuits or any other matters that should be explained.
Where a layout-design is not put into commercial exploitation before the date of filing, 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 page number of the reproduction or drawing of the layer of drawings containing the confidential information and the total number of such pages 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 reproduction 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 infringement litigation or administrative procedures, no one is allowed to view or copy the confidential information.
Preliminary Examination
Where an application is not accepted, the applicant shall be notified of the non-acceptance.
For an accepted application, where the application document does not meet the relevant regulations, the CNIPA will issue an office Action and the applicant may make rectification. Where no response is made within the prescribed time limit, the application shall be deemed to have been withdrawn. Where the application document still does not meet the relevant regulations after rectification, the CNIPA will issue a Decision of Rejection.
Where no ground for rejection is found after preliminary examination of an application for registration of a layout-design, , the CNIPA shall register it, issue a registration certificate and publicly announce the same. The exclusive rights of layout-design take effect on the date of filing.
The Certificate of Registration of Layout-design shall comprise the following:
(1) the name or title and address of the holder of the rights of layout-design;
(2) the title of the layout-design;
(3) the time when the layout-design was put into commercial exploitation for the first time, where it had been put into commercial exploitation before the date of filing;
(4) the date of filing the application for registration of the layout-design and date of completion of the creation of the layout-design;
(5) the date of issuance of the Certificate of Registration of Layout-design;
(6) the registration number of the layout-design.
Reexamination
Where the applicant for layout-design registration is not satisfied with the CNIPA’s decision to reject its or his or her application for registration, it or he or she may, within three months from the date of receipt of the notification, request the Patent Reexamination Department to make a reexamination.
A reexamination petitioner may amend the layout-design application documents when it or he or she files a reexamination request or responds to a notification of reexamination issued by the Patent Reexamination Department; but the amendment shall be limited to the elimination of defects pointed out in the decision of rejection, or in the notification of reexamination.
A reexamination petitioner may withdraw its or his or her request for reexamination before the Patent Reexamination Department makes its decision. Where reexamination petitioner withdraws its or his or her request for reexamination before the Patent Reexamination Department makes its decision, the reexamination proceedings terminate.
The Patent Reexamination Department shall, after reexamination, make a decision and notify the applicant for layout-design registration
Where the applicant for layout-design registration is still not satisfied with the decision of the Patent Reexamination Department, it or he or she may, within three months from the date of receipt of the notification, institute legal proceedings before the people’s court.
Review
Where any party concerned is not satisfied or in dispute with one of the following administrative actions made by the CNIPA, it or he or she may file an application for review with the administrative review department of the CNIPA:
(1) not accepting the layout-design application;
(2) deeming a layout-design application to have been withdrawn;
(3) not allowing the restoration of relevant rights; or
(4) any other specific administrative action.
Revocation
Where, after the registration of a layout-design, it is found that the registration does not comply with the provisions of these Regulations, the Patent Reexamination Department shall revoke the exclusive rights of layout-design. Where the exclusive rights of the layout-design are revoked, the Patent Reexamination Department shall first notify the rights holder of layout-design, requesting it or him or her to make observations within a specified time limit. Where no response is submitted before the expiration of the time limit, the decision made by the Patent Reexamination Department to revoke the exclusive rights of layout-design will not be affected.
Where the rights holder of layout-design is not satisfied with the decision of the Patent Reexamination Department to revoke the registration of layout-design, it or he or she may, within three months from receipt of the notification, institute legal proceedings before the people’s court.
Where within the prescribed time limit no proceedings are instituted in the people's court against the decision of the Patent Reexamination Department to revoke the exclusive rights of layout-design, or after a ruling of the people's court which upholds the decision of the Patent Reexamination Department to revoke the exclusive rights of the layout-design takes effect, the CNIPA shall publicly announce the decision on revocation of the exclusive rights of layout-design on its website or in the China Intellectual Property News.
The revoked exclusive rights of the layout-design shall be deemed not to have existed ab initio (from the beginning).
Assignment and License
The rights holder of layout-design may assign its or his or her exclusive rights or give other persons a license to exploit its or his or her layout-design.
Where the exclusive rights of layout-design are assigned, the parties concerned shall conclude a written contract and register it with the CNIPA. The CNIPA shall publicly announce the registration. The assignment of the exclusive rights of layout-design shall take effect as of the date of registration.
Where a license to exploit a layout-design is granted to others, the parties shall conclude a written contract.
Where any Chinese entity or person assigns the exclusive rights of layout-design to a foreigner, it or he or she shall, when registering the assignment with the CNIPA, submit documents indicating that the relevant competent department under the State Council approves the assignment.
Non-Voluntary License
In the case of a national emergency, or in any extraordinary state of affairs, or for the purposes of public interests, or where it is determined according to the law by the people’s court or the supervision and inspection department against unfair competition that there is unfair competition on the part of the rights holder of layout-design and there is a need to give remedy, the CNIPA may grant a non-voluntary license to exploit the layout-design.
Any decision made by the CNIPA to grant a non-voluntary license to exploit a layout-design shall be notified promptly to the rights holder of layout-design.
In the decision to grant 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 grant. The scope shall be limited to non-commercial use for public purposes, or limited to the remedy for an act of the rights holder of layout-design where such act is determined to be one of unfair competition according to the law by the people’s court or the supervision and inspection department against unfair competition.
When the circumstances which led to such non-voluntary license cease to exist and are unlikely to recur, the CNIPA shall, after reviewing upon the request of the rights holder of layout-design, make a decision to terminate the non-voluntary license.
Any natural person, legal person or other organization that is granted a non-voluntary license to exploit a layout-design shall not have exclusive rights to exploit it and shall not have the right to authorize exploitation by any other person.
Any natural person, legal person or other organization that is granted a non-voluntary license shall pay to the rights holder of layout-design a reasonable remuneration, 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 make adjudication.
Where the rights holder of layout-design is not satisfied with the CNIPA’s decision to grant a non-voluntary license to exploit the layout-design, or where the rights holder of layout-design or, the natural person, legal person or other organization that is granted the non-voluntary license is not satisfied with the adjudication made by the CNIPA regarding the remuneration payable for exploitation, it or he or she may, within three months from the date of receipt of notification, institute legal proceedings before the people’s court.
Public Announcement, Viewing and Photocopying by the Public
The following contents shall be publicly announced in the China Intellectual Property News:
(1) any bibliographic items recorded in the Layout-design Register;
(2) any notices to the concerned parties whose the addresses are not available;
(3) any corrections made by the CNIPA; and
(4) any other relevant matters.
The layout-design register established by the CNIPA shall record the following:
(1) the name or title, nationality and address of the rights holder of layout-design and any change thereof;
(2) any registration of the layout-design;
(3) any transfer and inheritance of the exclusive rights of layout-design;
(4) any abandonment of the exclusive rights of layout-design;
(5) any pledge and preservation of the exclusive rights of layout-design, and release of such pledge and preservation;
(6) any revocation of the exclusive rights of layout-design;
(7) any termination of the exclusive rights of layout-design;
(8) any restoration of the exclusive rights of layout-design; and
(9) any non-voluntary license for exploitation of the exclusive rights of layout-design.
After the public announcement of the registration of a layout-design, the public may request to view the Layout-design Register, or request the CNIPA for a photocopy thereof. The public may also request to view the reproduction or drawings in paper form of the layout-design.
As for the electronic version of the reproduction or drawing submitted at the time of filing an application, no one is allowed to view or copy it, unless it is made necessary by infringement litigation or administrative procedures.
Abandonment
Any rights holder of layout-design may, before the expiration of the protection term of its or his or her exclusive rights of layout-design, file a written declaration with the CNIPA to abandon the exclusive rights.
Where the exclusive rights of layout-design are licensed to another person for exploitation or are pledged, the abandonment of such exclusive rights of layout-design shall be done with the consent of the licensee or the pledgee.
The abandonment of the exclusive rights of layout-design shall be registered with and publicly announced by the CNIPA.
Protection
Except as otherwise prescribed in these Regulations, where any person commits any of the following acts without the authorization of the rights holder of layout-design, he or it must stop the acts immediately and bear the liability to compensate for the damage:
(1) reproducing a protected layout-design in its entirety or any part thereof that complies with the requirement of originality;
(2) importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit incorporating such a layout-design, or an article incorporating such an integrated circuit.
The amount of compensation for the damage caused by an infringement of the exclusive rights of layout-design shall be the profits which the infringer has earned through the infringement or the losses suffered by the infringed party, including the reasonable expenses paid by the infringed party for the purposes of stopping the infringement.
Where a dispute arises from the exploitation of a layout-design without the authorization of the rights holder of layout-design, that is, the infringement of the exclusive rights of layout-design, it shall be settled through consultation by the parties concerned. Where the parties are not willing to consult with each other or where the consultation fails, the rights holder of layout-design or any interested party may institute legal proceedings before the people’s court, or request the CNIPA to handle the matter.
Judicial Remedies
Jurisdiction
The first instance civil and administrative cases involving the ownership, transfer contracts, infringement disputes, pre-litigation applications for injunctions against infringement, preservation cases, and other cases related to layout designs of integrated circuits shall be under the jurisdiction of intellectual property courts, the intermediate people's court located in the places where the people's governments of provinces, autonomous regions, and municipalities directly under the central government are located, and intermediate people's courts designated by the Supreme People's Court.
Infringement disputes over the exclusive rights of layout-design of integrated circuits shall be under the jurisdiction of the people’s court in the place where the defendant is domiciled or where the infringement occurred.
Cases involving disputes over ownership shall be under the jurisdiction of the people's court in the place where the defendant is domiciled.
Cases involving contract disputes shall be under the jurisdiction of the people's court in the place where the defendant is domiciled or where the contract is performed. The parties to the contract may, through agreement in a written contract, choose the people's court of the defendant's domicile, the place of contract performance, the place of contract signing, the plaintiff's domicile, or the location of the subject matter to exercise jurisdiction, but such choice shall not violate the provisions on hierarchical jurisdiction and exclusive jurisdiction.
Reasonable Reproduction and Commercial Exploitation
Any of the following acts may be performed without the authorization of the rights holder of layout-design and without any payment of remuneration:
(1) reproducing a protected layout-design for personal 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 a protected layout-design referred to in the preceding sub-paragraph;
(3) reproducing or commercially exploiting a layout-design that is identical with the layout-design of another person but is created independently by oneself.
Exhaustion of Rights
Where a protected layout-design, an integrated circuit incorporating such a layout-design, or an article incorporating such an integrated circuit has been put on the market by, or with the consent of, the rights holder of layout-design, anyone may exploit it for commercial purposes without the authorization of, nor payment of remuneration to, the rights holder of layout-design.
Bonafide Reproduction and Commercial Exploitation
Where any person acquires an integrated circuit incorporating a protected layout-design or an article incorporating such an integrated circuit, if at the time of acquiring the said integrated circuit or article, that person did not know and had no reasonable ground to know that an unlawfully reproduced layout-design was incorporated therein, the commercial exploitation of such integrated circuit or article by that person shall not be deemed as infringing the rights of layout-design.
After being notified that the integrated circuit or the article incorporates an unlawfully reproduced layout-design, the person referred to in the preceding paragraph may, subject to payment of reasonable remuneration to the rights holder of layout-design, continue to commercially exploit the stock on hand or goods ordered before the notification.
Preservation
Where any rights holder of layout-design or interested party has evidence to prove that another person is infringing or will soon infringe its or his or her exclusive rights and that if such infringing act is not stopped or prevented from occurring in time, it is likely to cause irreparable harm to its or his or her legitimate rights, it or he or she may, before any legal proceedings are instituted, request the people’s court to adopt measures for ordering to stop the relevant acts and for the preservation of property.
Administrative Investigation and Punishment
The CNIPA establishes the Administrative Law Enforcement Committee for Layout Designs of Integrated Circuits (hereinafter referred to as the Administrative Law Enforcement Committee), which is responsible for handling disputes involving infringement of the exclusive rights of layout-design and mediating the amount of compensation for infringement of the exclusive rights of layout-design.
Where any infringement dispute over the exclusive rights of layout-design involves complex technical issues that require expert appraisal, the Administrative Law Enforcement Committee may entrust relevant units to conduct professional technical appraisals. The appraisal opinions or conclusions can only be used as the basis for making a final judgment after being cross-examined by the parties concerned. The appraisal costs shall be borne by the parties concerned.
When handling any dispute involving infringement of the exclusive rights of layout-design, the Administrative Law Enforcement Committee may, as required by the circumstances of the case, investigate and collect relevant evidence based on its functions and powers in the course of handling.
If the Administrative Law Enforcement Committee determines that an infringement has occurred and issues a decision on handling, it shall take the following measures to stop the infringement:
(1) if the respondent has reproduced a protected layout-design, it shall be ordered to immediately stop the reproduction, and the reproduced drawings, masks, special equipment, and integrated circuits incorporating the layout-design shall be confiscated and destroyed;
(2) if the respondent has imported, sold or otherwise distributed a protected layout-design for commercial purposes, it shall be ordered to immediately stop the import, sale or distribution, and the relevant drawings and masks shall be confiscated and destroyed;
(3) if the respondent has imported, sold or otherwise distributed integrated circuits incorporating a protected layout-design for commercial purposes and knew or had reasonable grounds to know that an unlawfully reproduced layout-design was incorporated therein, it shall be ordered to immediately stop the import, sale or distribution, and the integrated circuits shall be confiscated and destroyed;
(4) if the respondent has imported, sold or otherwise distributed articles containing infringing integrated circuits for commercial purposes and knew or had reasonable grounds to know that an unlawfully reproduced layout-design was incorporated therein, it shall be ordered to immediately stop the import, sale or distribution, remove the integrated circuits from the articles that have not been sold or distributed, and the integrated circuits shall be confiscated and destroyed; if the respondent refuses to remove them, the articles shall be confiscated and destroyed.
(5) other necessary measures for stopping the infringement.
If any party concerned is dissatisfied, it or he or she may file an administrative lawsuit with the people's court within 15 days from the date of receiving the decision on handling.
After the Administrative Law Enforcement Committee issues a decision determining that an infringement has occurred, if the respondent files an administrative lawsuit with the people's court, the execution of the decision shall not be suspended during the litigation period.
If the respondent neither files a lawsuit nor stops the infringement within the designated period for filing a lawsuit against the decision of the Administrative Law Enforcement Committee which determines that an infringement has occurred, the CNIPA may request the people's court for compulsory execution.
Upon the request of the parties concerned, the Administrative Law Enforcement Committee may mediate the amount of compensation for infringement of the exclusive rights of layout-design. If mediation fails, the parties concerned may institute legal proceedings with the people's court.
Integrity Requirements for Administrative Authorities
Before the public announcement of the registration of a layout-design, the staff of the CNIPA shall have an obligation to keep its content confidential.
Where any staff member of the CNIPA, in the work of layout-design administration, neglects his or her duty, abuses his or her power or commits 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 or she shall be given administrative sanction in accordance with law.
