(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)
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 which 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, 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.
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;
(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.
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;
(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.
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.
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 law suit 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 law suit 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.
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.