INTEGRATED CIRCUIT

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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