Protection of Integrated Circuit Layout Design in China
As the integrated circuit industry is a key strategic industry developed and supported by countries around the world in the 21st century, the protection of integrated circuit layout design is particularly necessary. This article will introduce the protection of integrated circuit layout design in China.
1.Overview of integrated circuit layout design
Integrated Circuit Layout Design means the three-dimensional disposition of the elements, at least one of which is an active element, and two or more of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit for manufacture.
China's layout-design of integrated circuits protection is relatively late. The State Council passed the Regulations on Protection of Integrated Circuit Layout Design on March 28, 2001, which took effect on October 1, 2001. According to the Regulations on Protection of Integrated Circuit Layout Design, the Implementing Rules of Regulations on Protection of Integrated Circuit Layout Design have been formulated, which also come into force on October 1, 2001.
2.Legislation status of the protection of layout-design
The exclusive right of layout-design refers to the right to use layout-design to realize the value of layout design and obtain commercial benefits obtained according to law after application for registration.
2.1 The subjects of integrated circuit layout design rights
According to Article 3 of the Regulations on Protection of Integrated Circuit Layout Design, any Chinese natural person, legal entity or any other organization shall, according to the Regulations, enjoys the exclusive right in the layout-design he or it invents; Any foreign person who, or entity which, first puts his or its layout-design into commercial exploitation in the territory of China, shall , according to the Regulations, enjoys the exclusive right in the layout-design he or it invents; Any foreign inventor of a layout-design who is from a country which has concluded an agreement on the protection of layout-designs with China or which has acceded, with China, to an international treaty on the protection of layout-design shall, according to the Regulations, enjoys the exclusive right in the layout-design he or it invents.
2.2 The object of the protection of layout-design
A protected layout-design shall possess originality, namely the layout-design is the product of the intellectual labor of the inventor, and the layout-design is not a standard design generally accepted by the layout-design inventors and integrated circuit manufactures. In respect of layout-design of combined standard design, the combination as a whole shall meet the requirement of the originality.
Please note that the protection of integrated circuit layout design is limited to the layout-design of the chip (IC chip), excluding the design of the circuit board (PCB board).
Currently, countries around the world mainly adopt different methods of acquisition. China adopts a registration system.
China National Intellectual Property Administration (CNIPA) is responsible for the registration of layout-designs and receives applications for the registration thereof; The layout-design application form, a copy or drawing of the layout-design, an integrated circuit specimen incorporating a layout-design if put into commercial exploitation and any other documents as required for by CNIPA shall be submitted.
The official fee for layout design registration is 2005 CNY, including registration fee 2000 CNY and stamp tax 5 CNY.
2.3.2 The preliminary examination, registration and announcement
Where there has found no reasonable ground for rejection in the application for registration of a layout-design upon preliminary examination, CNIPA shall register it, issue the Registration Certificate and announce the registration.
CNIPA will not register any layout design if the application is filed after two years from the date when it is first put into commercial exploitation anywhere in the world.
Any applicant who is not satisfied with the decided rejections of the application for registration may request CNIPA for reexamination with 3 months from the date of receipt of the notification thereof. After conducting the reexamination, CNIPA shall make decision and notify the applicant. The layout-design applicant who is still not satisfied with the reexamination decision by CNIPA may file a lawsuit with 3 months from the date of receipt of the notification thereof.
2.3.4 Cancellation of registration
After granting the registration of a layout-design, CNIPA finds that the registration does not conform to the Regulations, the registration shall be revoked, the holder of right of the layout-design notified, and the revocation published. The holder of right of the layout-design who is not satisfied with the decision by CNIPA on the revocation may file a lawsuit with 3 months from the date of receipt of the notification thereof.
2.4 The duration of the protection of layout-design
The duration of the protection for layout-design exclusive rights is ten years starting from the date of application for registration of the layout-design or from the date of putting it into commercial exploitation somewhere in the world, whichever is the earlier date, but a layout-design is not protected after 15 years of its invention.
2.5 The content of the exclusive rights of layout-design
2. 5.1 Right of reproduction
Right of reproduction refers to reproduction of the whole or any part of an original layout-design under protection.
2. 5.2 Commercial use rights
It means putting into commercial exploitation of a protected layout-design, integrated circuit incorporating a layout-design or article incorporating an integrated circuit.
2.6 Exercise of the exclusive rights of layout-design
The transfer of the exclusive rights of layout-design means that the right holder transfers all his rights to the assignee. According to the Regulations, if the right is transferred, the parties concerned shall conclude a written contract, and register and announce it with CNIPA
The parties shall conclude a written contract.
2.7 The limitation of the exclusive rights of layout-design
2.7.1 Fair use
An act of reproducing a protected layout-design is performed for private purposes or for the sole purposes of evaluation, analysis, research and teaching;
2.7.2 Reverse engineering
Creating an original layout-design on the basis of the previous purposes of evaluation and analysis of the protected layout-design;
2.7.3 Exhaustion of rights
Where after a protected layout-design, integrated circuit incorporating a layout-design or article incorporating an integrated circuit is put on the market by holder of right thereof or with the authorization therefrom, another person puts it again for commercial exploitation, a license may not be sought from, nor remuneration paid to the holder of right of the layout-design.
2.7.4 Bona fide purchaser
Bona fide purchasers are exempted by law. But after being expressly notified that the product incorporates an illegally reproduced layout-design, the bona fide purchasers may continue to put the goods kept in stock or ordered before into commercial exploitation, but he or it shall pay reasonable amount of remuneration to the holder of right of the layout-design.
2.7.5 Compulsory license
Where a national emergency or any extraordinary state of affairs arises, or where the public interests so require, or the People’s Court or the supervising and inspecting department against acts of unfair competition decides that the holder of right of layout-design is involved in an act of unfair competition ana needs remedies, CNIPA may grant the non-voluntary license for exploitation of the layout-design.
With the development of the integrated circuit industry, the Regulations have gradually exposed many problems, and the regulations need to be improved.
By Borsam Intellectual Property, China
Law Firm Website: https://www.borsamip.com
Call +86 755 8367 4636
Law Firm Website: https://www.borsamip.com
Call +86 755 8367 4636
ABOUT THE AUTHOR: Borsam Intellectual Property
Borsam is a professional I.P. law office, which consists by I.P. attorney, patent attorney and trademark attorney with twenty-year experience and cooperates with Taiwan professional patent/trademark attorney. Borsam establish a long cooperation with I.P. firms of more than fifty countries. Our aim is to assist individuals and organizations to maximize the potential of their intellectual property and to minimize the risks faced from exposure to third party rights. We deal with patents, copyright, trademarks and associated issues worldwide.
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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.