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I. Brief Introduction
of Registration of Integrated Circuits Layout Design
¡¡¡¡For the purpose of protection of exclusive rights
on Integrated Circuits Layout Design, the State Council
of China promulgated the "Protection Regulations
of Integrated Circuits Layout Design" on April
2, 2001, which came into force on October 1, 2001.
¡¡¡¡Said Regulations set integrated circuits layout designs
as protection subject, in detail, they refer to 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.
¡¡¡¡The exclusive right of layout design belongs to the
creator. 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
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. 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.
¡¡¡¡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.
¡¡¡¡The exclusive right of layout design establishes after
registration at the IP Administrative Organization (the
State Intellectual Property Office) of the State Council.
Layout design not registered does not enjoy protection
under the Regulations. 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.
¡¡¡¡To obtain registration of integrated circuit layout
design in China, a foreign applicant should entrust
a Chinese agency (like our firm) to file the application
at the IP Administrative Organization of the State Council.
II. Procedure for Layout Design Registration
¡¡¡¡1. Filing Stage:
¡¡¡¡ (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.
¡¡¡¡2. Examination Stage
¡¡¡¡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.
¡¡¡¡3. Further Stages
¡¡¡¡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.
¡¡¡¡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.
III. Legal Protection
¡¡¡¡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.
¡¡¡¡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.
¡¡¡¡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.
¡¡¡¡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.
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