(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 2, 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 rights 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 a 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 a three-dimensional disposition of 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) "rights holder of layout-design" means the natural person, the legal person or any other organization that, according to these Regulations, is entitled to the exclusive rights 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 rights 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 rights of layout-design in accordance with these Regulations.
Any layout-design created by a foreigner shall be eligible for the exclusive rights 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 parties to an international treaty concerning the protection of layout-designs.
Article 4. Any layout-design which is to be protected shall possess such originality that the layout-design is the result of the creator’s own intellectual effort, and at the time of the creation this layout-design is not conventional among creators of layout-designs and manufacturers of integrated circuits.
Where a layout-design which is to be protected consists of several conventional 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, processing procedures, methods of operations or mathematical concepts, etc.
Article 6. The intellectual property administration department of the State Council is responsible for the relevant administrative work concerning the exclusive rights of layout-designs in accordance with these Regulations.
Chapter II Exclusive Rights of Layout-design
Article 7. The rights holder of layout-design shall enjoy the following exclusive rights:
(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 rights of layout-designs are acquired after their 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 rights of layout-design shall belong to their 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 rights shall be agreed upon by the joint creators; in the absence of such an agreement or where the agreement is not clear, the exclusive rights 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 rights shall be agreed upon by the commissioning party and the commissioned party; in the absence of such an agreement or where the agreement is not clear, the exclusive rights shall be owned by the commissioned party.
Article 12. The protection term of the exclusive rights 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 rights of layout-design belong to a natural person, the exclusive rights shall, after the death of the natural person and within the protection term as prescribed in these Regulations, be transferred in accordance with the provisions of the Succession Law.
Where the exclusive rights of layout-design belongs to a legal person or other organization, the exclusive rights 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 an application for registration is filed relates to the security or other vital interests of the State and is required to be kept confidential, 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 reproduction or drawing of the layout-design;
(3) where the layout-design has been put into commercial exploitation, a sample of the integrated circuit incorporating the layout-design;
(4) other materials required by the intellectual property administration department of the State Council.
Article 17. Where no application for the registration of a layout-design 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, the intellectual property administration department of the State Council shall refuse to register such layout-design.
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 to reject its or his or her application for registration, it or he or she 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 or she may, within three months from the date of receipt of the notification, institute legal proceedings 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 rights holder of layout-design and announce it. Where the rights holder of layout-design is not satisfied with the decision of the intellectual property administration department of the State Council to revoke the registration of layout-design, it or he or she may, within three months from receipt of the notification, institute legal proceedings 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 confidential.
Chapter IV Exercise of Exclusive Rights of Layout-design
Article 22. The rights holder of layout-design may assign its or his or her exclusive rights or give other persons a license to exploit its or his or her layout-design.
Where the exclusive rights of layout-design are 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 rights of layout-design shall take effect as of the date of registration.
Where a license to exploit a layout-design is granted to others, the parties shall conclude a written contract.
Article 23. Any of the following acts may be performed without the authorization of the rights holder of layout-design and without any payment of remuneration:
(1) reproducing a protected layout-design for personal 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 rights holder of layout-design, anyone may exploit it for commercial purposes without the authorization of, nor payment of remuneration to, the rights holder 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 rights holder 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 to grant a non-voluntary license to exploit a layout-design shall be notified promptly to the rights holder of layout-design.
In the decision to grant 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 limited to the remedy for an act of the rights holder of layout-design where such act is determined to be one of unfair competition according to the law by the people’s court or the supervision and inspection department against 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 rights holder 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 exclusive rights 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 rights holder of layout-design a reasonable remuneration, the amount of which shall be fixed by both parties through consultation; where the parties fail to reach an agreement, the intellectual property administration department of the State Council shall make adjudication.
Article 29. Where the rights holder of layout-design is not satisfied with the decision of the intellectual property administration department of the State Council to grant a non-voluntary license to exploit the layout-design, or where the rights holder of layout-design or, the natural person, legal person or other organization that is granted the non-voluntary license is not satisfied with the adjudication made by the intellectual property administration department of the State Council regarding the remuneration payable for exploitation, it or he or she may, within three months from the date of receipt of notification, institute legal proceedings 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 rights holder of layout-design, he or it must stop the acts immediately and bear the 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 rights of layout-design shall be the profits which the infringer has earned through the infringement or the losses suffered by the infringed party, including the reasonable expenses paid by the infringed party for the purposes of stopping the infringement.
Article 31. Where a dispute arises from the exploitation of a layout-design without the authorization of the rights holder of layout-design, that is, the infringement of the exclusive rights 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 rights holder of layout-design or any interested party may institute legal proceedings 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, it or he or she may, within 15 days from the date of receipt of the notification, institute legal proceedings 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 on the amount of compensation for the damage caused by the infringement of the exclusive rights of layout-design. If the mediation fails, the parties may institute legal proceedings before the people’s court in accordance with the Civil Procedure Law of the People’s Republic of China.
Article 32. Where any rights holder of layout-design or interested party has evidence to prove that another person is infringing or will soon infringe its or his or her exclusive rights and that if such infringing act is not stopped or prevented from occurring in time, it is likely to cause irreparable harm to its or his or her legitimate rights, it or he or she may, before any legal proceedings are instituted, request the people’s court to adopt measures for ordering to stop the relevant acts and for the preservation of property.
Article 33. Where any person acquires an integrated circuit incorporating a protected layout-design or an article incorporating such an integrated circuit, 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 an unlawfully reproduced layout-design was incorporated therein, the commercial exploitation of such integrated circuit or article by that person shall not be deemed as infringing the rights of layout design.
After being notified that the integrated circuit or the article incorporates an unlawfully-reproduced layout-design, the person referred to in the preceding paragraph may, subject to payment of reasonable remuneration to the rights holder of layout-design, continue to commercially exploit the stock on hand or goods 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 or her duty, abuses his or her 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 or she 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, one shall pay fees 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 publicly announced by the intellectual property administration department of the State Council.
Article 36. These Regulations shall enter into force as of October 1, 2001.
