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Order of the State Council of the People's Republic of China (No.300)
The Regulations on Protection of Integrated Circuit Layout Design was adopted at the 36th executive meeting of the State Council on March.28.2001, and is now promulgated and shall come into force since Oct.1.2001.
Prime Minister Zhu Rongji
April.2.2001
Regulations on Protection of Integrated Circuit Layout Design
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Chapter 1 General Provisions
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Article 1 These Regulations are formulated with a view to protecting the exclusive rights of integrated circuit layout design, encouraging the innovation of integrated circuit technology and promoting the development of science and technology.
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Article 2 The meanings of the following terms used in these Regulations are:
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1) “Integrated circuit “ refers to semiconductor integrated circuit, namely semi-finished products or final products that use semiconductor material as the substrate, and integrate two or more components, at least one of which shall be the active component, and part or all of interconnected circuits between or on the substrate to perform some kind of electronic function;
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2) “Integrated circuit layout design” (hereinafter referred to as “layout design”) means the three-dimensional disposition of integrated circuit that has two or more components, at least one of which shall be the active component, and has part or all of interconnected circuits, or the three-dimensional disposition mentioned above that is prepared for the manufacturing of integrated circuit;
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3) “Right Holder of layout design” refers to natural persons, legal entities or other organizations that enjoy the exclusive rights of layout design according to the provisions of these Regulations;
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4) “Reproduction” refers to the acts of repeatedly making layout design or integrated circuit which contains that layout;
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5) “Commercial utilization” refers to the acts of importing, selling or, by other means, providing layout design under protection, integrated circuit which contains that layout design or items which contain that integrated circuit for commercial purposes.
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Article 3 Chinese natural persons, legal entities or other organizations shall enjoy the exclusive rights of the layout design created by them according these Regulations.
If the layout design created by foreigners is put into commercial utilization in China first, the foreigner shall enjoy the exclusive rights of the layout design according to these Regulations.
The foreigner shall enjoy the exclusive rights of the layout design created by him according to these Regulations if his host country has signed agreements on protection of layout design, or has joined international treaties on protection of layout design with China.
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Article 4 The layout design under protection shall have originality, namely, the layout design shall be the achievements of the creator's intellectual work, and when it is created, that layout design shall not be generally recognized as a routine design by the creators of layout design and the producers of integrated circuit.
With regard to layout design composed of routine designs, the combination as a whole shall meet the requirements prescribed in the previous clause
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Article 5 The protection of layout protection by these Regulations shall not be extended to ideas, transaction process, operation methods or mathematical concepts, etc.
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Article 6 The administrative departments of intellectual property of the State Council are responsible for the relevant management of the exclusive rights of layout design.
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Chapter 2 Exclusive Rights of Layout Design
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Article 7 The right holder of layout design enjoys the following exclusive rights:
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1. Reproducing the whole of the layout design under protection or reproducing any part of the layout design that has originality;
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2. Putting into commercial utilization the layout design under protection, the integrated circuit that contains this layout design or items that contain this integrated circuit.
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Article 8 The exclusive rights of layout design shall come into existence after the layout design is registered by the administrative departments of intellectual property of the State Council. Any layout design that is not registered shall not be protected by these Regulations.
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Article 9 The exclusive rights of layout design belong to the creator of the layout design, except otherwise prescribed by these Regulations.
The legal entity or other organization shall be the creator of the layout design if the layout design is organized by the legal entity or other organizations, and is created according to the will of the legal entity or other organizations, and if the legal entity or other organizations bear the liability of the layout design.
If the layout design is created by a natural person , he shall be the creator of it.
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Article 10 The ownership of exclusive rights of the layout design cooperatively created by two or more natural persons, legal entities or other organizations shall be settled upon an agreement by the cooperators; if there is no agreement or the agreement is ambiguous, the cooperators shall enjoy the exclusive rights of the layout design jointly.
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Article 11 The ownership of exclusive rights of the layout design created by entrustment shall be settled upon an agreement between the trustor and the trustee; if there is no agreement of the agreement is ambiguous, the trustee shall enjoy the exclusive rights of the layout design.
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Article 12 The term of protection of exclusive rights of layout design is 10 years, either from the day of application for the registration of layout design or the day on which the layout design is put into commercial utilization for the first time at any place of the world, and the earlier date of the two shall prevail. However, the layout design shall not be protected by these Regulations after 15 years since the day it is created, no matter whether it is registered or put into commercial utilization.
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Article 13 If the exclusive rights of layout design belong to a natural person, those exclusive rights shall be transferred within the term of protection prescribed by these Regulations according to the provisions of the Succession Law after that natural person's death.
If the exclusive rights of layout design belong to a legal entity or other organizations, those exclusive rights shall be enjoyed by the legal entity or other organizations that inherit the rights and obligations within the term of protection prescribed by these Regulations after that legal entity or other organizations are changed or terminated; if there are no legal entity or other organizations that inherit the rights and obligations, that layout design shall come into the public domain.
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Chapter 3 Registration of Layout Design
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Article 14 The administrative departments of intellectual property of the State Council shall be responsible for the registration of layout design and accept the application for registration of layout design.
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Article 15 If the layout design applying for registration involves state security or important interests, and needs to be kept secret, it shall be handled according to the relevant provisions of the state.
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Article 16 The following shall be submitted to apply for the registration of layout design:
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1) Application form for the registration of layout design;
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2) Copies or drawings of the layout design;
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3) Integrated circuit samples which contain the layout design if it has already been put into commercial utilization; and
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4) Other material prescribed by the administrative departments of intellectual property of the State Council.
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Article 17 The administrative departments of intellectual property of the State Council shall not register any layout design that hasn't applied for registration in 2 years since it was put into commercial utilization for the first time at any place of the world.
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Article 18 Administrative departments of intellectual property of the State Council shall register the layout design that passes the preliminary examination and if no reason for rejection of it is found, the administrative departments shall issue certificates of registration and make public announcements.
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Article 19 If the applicant for the registration of layout design refuses to accept the rejection of his application by the administrative departments of intellectual property of the State Council, he may ask the administrative departments for re-examination in 3 months since the day on which he receives the notification. After the re-examination, the administrative departments of intellectual property of the State Council shall make the decision, and notify the applicant for the registration of layout design of the decision. If the applicant for the registration of layout design still refuses to accept the re-examination decision by the administrative departments of intellectual property of the State Council, he may file an action at the people's court within 3 month since the day on which he receives the notification.
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Article 20 The administrative departments of intellectual property of the State Council shall cancel the registration of layout design if they find that the registration is not in accordance with the provisions of these Regulations after the layout design is approved to be registered, and shall notify the right holder of the layout design and make public announcements. If the right holder of the layout design refuses to accept the decision of canceling the registration of layout design by the administrative departments of intellectual property of the State Council, he may file an action at the people's court within 3 months since the day on which he receives the notification.
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Article 21 Personnel of the administrative departments of intellectual property of the State Council are under the obligation to keep secret the content of layout design before public announcements of the registration of layout design are made.
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Chapter 4 Exercise of the Exclusive Rights of Layout Design
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Article 22 A right holder of layout design may transfer his exclusive rights or permit others to use his layout design.
The parties shall make a written contract to transfer the exclusive rights of layout design, and shall register at the administrative departments of intellectual property of the State Council. The administrative departments of intellectual property of the State Council shall make public announcements. The transfer of exclusive rights of layout design shall take effect since the day of registration.
The parties shall make a written contract if the right holder is to permit others to use his layout design.
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Article 23 One may conduct the following acts without the permission of the right holder of layout design, and may pay no remuneration to the right holder of layout design:
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1) Reproducing the layout designs under protection for personnel purposes or simply for the purposes of appraisal, analysis, research, and teaching, etc;
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2) Creating layout design that has originality based on the appraisal, analysis of the layout design under protection prescribed in the previous paragraph; and
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3) Reproducing the layout design that is created independently by oneself and that is the same as the layout design of others, or putting the layout design into commercial utilization.
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Article 24 If the right holder of layout design or others permitted by the right holder of layout design put the layout design which is under protection, the integrated circuit which contains that layout design or items which contain that integrate circuit into market, others may put them into commercial utilization again without the permission of the right holder of layout design and may pay no remuneration to the right holder of layout design.
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Article 25 The administrative departments of intellectual property of the State Council may grant non-voluntary permission to the use of layout design when emergencies or exceptional circumstances occur in the state, or for the purpose of public interests, or when the departments of supervision and inspection of unfair competition, according to law, find that the right holder of layout design has done acts of unfair competition and that remedies are needed.
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Article 26 The administrative departments of intellectual property of the State Council shall notify the right holder of layout design in time if they make the decision to grant non-voluntary permission to the use of layout design.
The decision to grant non-voluntary permission shall prescribe the scope and time of use according to the reasons for non-voluntary permission, and the scope shall be limited to non-commercial use for public purposes, or be limited to the remedy needed for the acts of unfair competition, conducted by the right holder of layout design, determined by the people's court, and by the departments of supervision and inspection of unfair competition.
If the reasons for non-voluntary permission are eliminated and will not occur any more, the administrative departments of intellectual property of the State Council shall make the decision to stop the non-voluntary permission to the use of layout design after examination upon the request of the right holder of layout design.
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Article 27 Natural persons, legal entities or other organizations that obtain non-voluntary permission to the use of layout design shall not enjoy the exclusive rights to the use of layout design, and shall not have the right to permit others to use the layout design.
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Article 28 Natural persons, legal entities or other organizations that obtain non-voluntary permission to the use of layout design shall pay reasonable remuneration to the right holder of the layout design, and the amount shall be negotiated by the two parties; if the two parties fail to reach an agreement, the administrative departments of intellectual property of the State Council shall make the decision.
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Article 29 If the right holder of layout design refuses to accept the decision of non-voluntary permission to the use of layout design by the administrative departments of intellectual property of the State Council, or if the right holder of layout design, natural persons, legal entities or other organizations that obtain non-voluntary permission refuse to accept the decision on the remuneration of the non-voluntary permission to the use of layout design by the administrative departments of intellectual property of the State Council, they may file actions at the people's courts within 3 months since the day on which they receive the notifications.
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Chapter 5 Legal Liability
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Article 30 If one conducts any of the following acts, except otherwise provided in these Regulations, the actor shall stop the infringing acts immediately and bear the liability of compensation:
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1) Reproducing the whole of the layout design under protection or any part of it that has originality;
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2) Importing, selling or, by other means, providing the layout design under protection, the integrated circuit that contains that layout design, or items that contain that integrate circuit.
The amount of compensation for infringing the exclusive rights of layout design shall be the amount of profits obtained by the infringer or of the losses of the infringed, including the reasonable expenses paid by the infringed to stop the infringing acts.
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Article 31 One infringes the exclusive rights of layout design of others if he uses the layout design without the permission of the right holder, if disputes arise, the parties shall negotiate and settle them; if the parties will not negotiate or fail to reach an agreement, the right holder of the layout design or interested persons may either file actions at the people's courts, or ask the administrative departments of intellectual property of the State Council to handle it.
If the administrative departments of intellectual property of the State Council determine that there are infringing acts, when handling the case, they may order the infringer to stop the infringing acts immediately, and may confiscate and destroy the infringing products or items. If the parties refuse to accept the order, they may file actions at the people's courts within 15 days since the day on which they receive the notifications according to the Administrative Procedure Law of the People's Republic of China; if the infringer doesn't file an action and doesn't stop the infringing acts, the administrative departments of intellectual property of the State Council may ask the people's courts to enforce the order.
The administrative departments of intellectual property of the State Council may conciliate the parties on the amount of compensation for infringing the exclusive rights of layout design; if the conciliation fails, the parties may file an action at the people's courts according to the Civil Procedure Law of the People's Republic of China.
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Article 32 If the right holder of layout design or the interested persons have evidence to prove that others are infringing or are going to infringe his exclusive rights, and they may incur heavy losses that can not be made up if the infringing acts are not stopped in time, the right holder of layout design or the interested persons may, according to law, apply to the people's courts for the order to stop the relevant acts and the measures for attachment before he files an action.
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Article 33 When one obtains the integrated circuit which contains the layout design under protection, or items which contain that integrated circuit, if he doesn't know and has no reasonable reasons to know that they contain layout designs illegally reproduced and put them into commercial utilization, the acts shall not be deemed as infringements.
The actor mentioned in the previous clause may continue to put the present goods in stock or goods ordered before into commercial utilization after he has received clear notification that the goods contain layout designs illegally reproduced, but he shall pay reasonable remuneration to the right holder of layout design.
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Article 34 If personnel of the administrative departments of intellectual property of the State Council neglect duties, abuse their official capacity, practice favoritism and irregularities in the management of layout design and the acts constitute crimes, the criminal responsibilities shall be investigated into; if the acts haven't constituted crimes, administrative punishments shall be imposed.
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Chapter 6 Supplementary Provisions
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Article 35 One shall pay charges to apply for the registration of layout design and to go through other procedures according to the provisions. The charging standard shall be set up by the departments in charge of price of the State Council and the administrative departments of intellectual property of the State Council. The administrative departments of intellectual property of the State Council shall make public announcements.
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Article 36 These Regulations shall come into force as of Oct.1.2001.
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