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Position：Home > Others > Regulations on the Protection of Layout-Designs of Integrated Circuits (2001) |
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| Regulations on the Protection of Layout-Designs of Integrated Circuits (2001) |
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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 )
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Chapter
I General Provisions
Article
1. These
Regulations are formulated in order to protect the exclusive right
of layout-design of integrated circuits, to encourage innovation of
integrated circuits technology and to promote the 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
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;
(2) "layout-design of integrated circuit"(hereinafter referred to
as layout-design) means the three-dimensional disposition of the 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;
(3) "holder of the right 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 a 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 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.
Article
3. Any
layout-design created by a Chinese natural person, legal person or
other organization shall be eligible for the exclusive right 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 right of layout-design in accordance
with these Regulations.
Any layout-design created by a foreigner shall be eligible for the
exclusive right 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 party to an international treaty
concerning the protection of layout-designs.
Article
4. Any
layout-design which is to be protected shall be original in the sense
that the layout-design is the result of the creator's own intellectual
effort, and it is not commonplace among creators of layout-designs
and manufacturers of integrated circuits at the time of its creation.
Where a layout-design that is to be protected consists of several
commonplace 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.
Article
5. The
protection of layout-designs under these Regulations shall not extend
to ideas, procedures, and methods of operations or mathematical concepts
as such.
Article
6. The
intellectual property administration department of the State Council
is responsible for the relevant administrative work concerning the
exclusive right of layout-design in accordance with these Regulations.
Go Top
Chapter
II Exclusive Right of
Layout-design
Article
7. The
holder of the right of layout-design shall enjoy the following exclusive
right:
(1) reproducing a protected layout-design in its entirety or any
part thereof that complies with the requirement of originality;
and
(2) commercially exploiting a protected layout-design, an integrated
circuit incorporating a protected layout-design, or an article incorporating
such an integrated circuit.
Article
8. The
exclusive right of layout-design is acquired after its being registered
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
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.
Article
10. Where
a layout-design is created jointly by two or more natural persons,
legal persons or other organizations, the ownership of the exclusive
right shall be agreed upon by the joint creators; in the absence
of such an agreement or where the agreement is not clear, the exclusive
right shall be owned jointly by the creators.
Article
11. Where
a layout-design is created in execution of a commission, the ownership
of the exclusive right shall be agreed upon by the person having
commissioned and the person being commissioned; in the absence of
such an agreement or where the agreement is not clear, the exclusive
right shall be owned by the person being commissioned.
Article
12. The
term of protection of the exclusive right 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.
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 prescribed 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
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.
Go Top
Chapter
III Registration of Layout-design
Article
14. The
intellectual property administration department of the State Council
is responsible for the registration of layout-design and receives
applications for layout-design registration.
Article
15. Where
a layout-design for which registration is applied 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
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 copy or drawing of the layout-design;
(3) where the layout-design has been put into commercial exploitation,
a sample of that integrated circuit incorporating the layout-design;
and
(4) other materials required by the intellectual property administration
department of the State Council.
Article
17. Any
layout-design, if no application for its 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, shall
no longer be registered by the intellectual property administration
department of the State Council.
Article
18. Where,
after preliminary examination of an application for registration
of layout-design, it is found that there is no cause for rejection
of the application, the intellectual property administration department
of the State Council shall register it, issue the registration
certificate and announce it.
Article
19. Where
the applicant for layout-design registration is not satisfied
with the decision of the intellectual property administration
department of the State Council rejecting its or his application
for registration, 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 layout-design registration. Where the applicant
for layout-design registration 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, bring a law suit
before 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 holder of the right
of layout-design and announce it. Where the holder of the right
of 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, bring a law suit before
the people's court.
Article
21. Until
the announcement of the layout-design registration, staff members
of the intellectual property administration department of the
State Council have the duty to keep its contents secret.
Go Top
Chapter
IV Exercise of Exclusive
Right of Layout-design
Article
22. The
holder of the right of layout-design may assign its or his exclusive
right or give other persons a license to exploit its or his
layout-design.
Where the exclusive right of layout-design is assigned, the
parties concerned 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 of the exclusive right of layout-design shall
take effect as of the date of registration.
Where a license to exploit a layout-design is given to others,
the parties shall conclude a written contract.
Article
23. Any
of the following acts may be performed without the authorization
of the holder of the right of layout-design and without any
payment of remuneration:
(1) reproducing a protected layout-design 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 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.
Article
24. 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 holder of the right of layout-design, anyone may exploit
it for commercial purposes without the authorization of, nor
payment of remuneration to, the holder of the right of layout-design.
Article
25. 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 holder of the right 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.
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 holder of
the right of 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
grant. The scope shall be limited to non-commercial use for
public purposes, or to remedy an act of the holder of the right
of layout-design determined according to the law by the people's
court or the supervision and inspection department against unfair
competition to be one of unfair competition.
When the circumstances which led 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 holder of the right of layout-design,
make a decision to terminate the non-voluntary license.
Article
27. Any
natural person, legal person or other organization that is granted
a 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
a non-voluntary license shall pay to the holder of the right
of layout-design a reasonable remuneration, the amount of which
shall be fixed by both parties in consultations; where the parties
fail to reach an agreement, the intellectual property administration
department of the State Council shall make an adjudication.
Article
29. Where
the holder of the right 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 holder of the right of layout-design
or, the natural person, legal person or other organization that
is granted the non-voluntary license is not satisfied with the
ruling made by the intellectual property administration department
of the State Council regarding the remuneration payable for
exploitation, it or he may, within three months from the date
of receipt of notification, bring a law suit before the people's
court.
Go Top
Chapter
V Legal Liability
Article
30. Except
as otherwise prescribed in these Regulations, where any person
commits any of the following acts without the authorization
of the holder of the right of layout-design, he or it must
stop the acts immediately and bear 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 right of layout-design shall be the profits
which the infringer has earned through the infringement or
the losses suffered by the person whose right was infringed,
including the reasonable expenses paid by the infringed person
for the purposes of stopping the infringement.
Article
31. Where
a dispute arises as a result of the exploitation of a layout-design
without the authorization of the holder of the right of layout-design,
that is, the infringement of the exclusive right 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 holder of the right of
layout-design or any interested party may bring a law suit
before 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 party concerned
is not satisfied with the decision, he may, within 15 days
from the date of receipt of the notification, bring a lawsuit
before the people's court in accordance with the Administrative
Procedure Law of the People's Republic of China. If, within
the said time limit, the infringer does not 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 enforcement. The
intellectual property administration department of the State
Council may, upon the request of the parties, mediate in 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 bring a lawsuit before the people's
court in accordance with the Civil Procedure Law of the People's
Republic of China.
Article
32. Where
any holder of the right 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 checked or prevented from occurring
in time, it is likely to cause irreparable harm to its or
his `legitimate rights, it or he may, before any legal proceedings
are instituted, request the people's court to adopt measures
for ordering the suspension of relevant acts and the preservation
of property.
Article
33. Where
any person commercially exploits an integrated circuit which
is incorporated an unlawfully reproduced layout-design, or
an article which is incorporated an integrated circuit with
unlawfully reproduced layout-design, and 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 the
said integrated circuit incorporated an unlawfully reproduced
layout-design, or the said article incorporated an integrated
circuit with unlawfully reproduced layout-design, the commercial
exploitation of such integrated circuit or article by that
person shall not be deemed as infringing the right of layout
design.
After being notified that the integrated circuit or the article
is incorporated with an unlawfully-reproduced layout-design,
the person referred to in the preceding paragraph may, subject
to payment of reasonable remuneration to the holder of the
right of layout-design, continue to commercially exploit the
stock on hand or ordered before the notification.
Article
34. Where
any staff member of the intellectual property administration
department of the State Council, in the work of layout-design
administration, neglects his duty, abuses his 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 shall be given administrative
sanction in accordance with law.
Go Top
Chapter
VI Supplementary Provisions
Article
35. When
applying for layout-design registration and going through
other formalities, fees shall be paid 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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