LAWS AND REGULATIONS

Decree of the Director General of State Intellectual Property Rights

eleventh

　　In accordance with the Regulations on the Protection of Layout-Designs of Integrated Circuits, the Implementing Rules for the Regulations on the Protection of Layout-Designs of Integrated Circuits are hereby promulgated and shall come into force as of October 1, 2001.

Director Wang Jingchuan

　　September 18, 2001

Rules for the Implementation of the Regulations on Layout Design Protection of Integrated Circuits

Chapter I General rules

Article 1 Purpose

In order to protect the exclusive right of integrated circuit layout-design (hereinafter referred to as layout-design) and promote the progress and innovation of integrated circuit technology in China, these implementation Rules (hereinafter referred to as these Rules) are formulated in accordance with the Regulations on the Protection of Integrated Circuit Layout-Design (hereinafter referred to as the Regulations).

Article 2 Registration Authority

The intellectual property administrative department of The State Council as mentioned in the regulations refers to the State Intellectual Property Office.

Article 3 Forms required for handling formalities

The various documents provided for in the Regulations and these Rules shall be handled in written form or in other forms prescribed by the State Intellectual Property Office.

Article 4 Agency

Where a Chinese entity or individual applies for the registration of a layout-design or handles other matters related to a layout-design in China, it may entrust a patent agency to handle the matter.

Where a foreigner, a foreign enterprise or any other foreign organization having no habitual residence or business establishment in China applies for the registration of a layout-design and handles other matters related to a layout-design in China, it shall entrust a patent agency designated by the State Intellectual Property Office to handle the matter.

Article 5 Determination of application documents and application date

In applying to the State Intellectual Property Office for registration of a layout-design, the application form for registration of a layout-design and the copies or drawings of the layout-design shall be submitted; Where the layout-design has been put into commercial use before the date of application, samples of integrated circuits containing the layout-design shall also be submitted.

The date on which the State Intellectual Property Office receives the layout-design application document mentioned in the preceding paragraph shall be the filing date. If the application documents are sent by mail, the date of the postmark shall be the filing date.

Article 6 Language of documents

All documents submitted in accordance with the Regulations and these Rules shall be in Chinese. Where there are uniformly prescribed scientific and technological terms by the State, standard words shall be used; Where there is no unified Chinese translation of the names of foreigners, place names and scientific and technological terms, the original shall be indicated.

Where the various certificates and certification documents submitted in accordance with the Regulations and these Rules are in foreign languages, the State Intellectual Property Office may, when it deems it necessary, require the parties concerned to attach Chinese translations within a specified time limit; If it has not been attached at the expiration of the time limit, it shall be deemed that the certificate and supporting documents have not been submitted.

Article 7 Submission and service of documents

Documents mailed to the State Intellectual Property Office shall be submitted on the date of the postmark. If the date of the postmark is not clear, the date on which the document is received by the State Intellectual Property Office shall be the date of submission, unless the parties concerned can provide proof.

Documents of the State Intellectual Property Office may be served on the parties by post, direct delivery or other means. Where a party entrusts a patent agency, the documents shall be sent to the patent agency; If no patent agency is appointed, the document shall be sent to the contact person specified in the application form.

For all kinds of documents mailed by the State Intellectual Property Office, 15 days from the date of issuance of the documents shall be presumed to be the date of receipt of the documents by the parties concerned.

For documents that should be delivered directly according to the provisions of the State Intellectual Property Office, the date of delivery shall be the date of service.

If the address of the document is not clear and cannot be mailed, it may be served on the party by way of public announcement. The document shall be deemed to have been served one month after the date of the announcement.

Article 8 Calculation of time limit

The first day of each time limit prescribed in the Regulations and these Rules shall not be counted as such. Where a time limit is calculated in years or months, the corresponding day of the last month shall be the day on which the time limit expires; If there is no corresponding day in that month, the time limit shall expire on the last day of that month.

If a time limit expires on a statutory holiday, it shall expire on the first working day after the holiday.

Article 9 Restoration of rights and extension of time limit

Where a party delays the time limit prescribed in these Rules or the time limit designated by the State Intellectual Property Office due to an irresistible cause and thus loses his rights, he may, within two months from the date of removal of the obstacle, but within two years at the latest from the date of expiration of the time limit, explain to the State Intellectual Property Office the reasons and attach relevant supporting documents to request the restoration of his rights.

Where a party delays the time limit prescribed in these Rules or the time limit designated by the State Intellectual Property Office due to legitimate reasons, resulting in the loss of his rights, he may, within two months from the date of receipt of the notice from the State Intellectual Property Office, explain the reasons to the State Intellectual Property Office and request the restoration of his rights.

Where a party requests the extension of the time limit designated by the State Intellectual Property Office, it shall, before the expiration of the time limit, explain the reasons to the State Intellectual Property Office and go through the relevant formalities.

No extension of the time limit prescribed by the regulations may be requested.

Article 10 Co-ownership

If a layout-design is created jointly by two or more units or individuals, the creators shall jointly apply for layout-design registration; If there is a contract, it shall follow.

Where the exclusive right to a common layout-design is involved, each holder of the joint layout-design right shall not transfer, pledge or enter into an exclusive license contract or an exclusive license contract with another person without the consent of the other holder of the joint layout-design right.

Article 11 Transfer of exclusive rights to foreigners

Where a Chinese unit or individual transfers the exclusive right of a layout-design to a foreigner, it shall, when registering the transfer with the State Intellectual Property Office, submit a certificate of approval of the transfer by the relevant competent department under The State Council.

Where the exclusive right of a layout-design is transferred, the parties concerned shall, on the strength of relevant supporting documents or legal documents, go through the formalities for changing the description item with the State Intellectual Property Office.

Chapter II Application for and examination of layout-design registration

Article 12 Application Documents

Where an application for registration of a layout-design is made in writing, the application for registration of a layout-design in duplicate and one copy or drawing of the layout-design shall be submitted to the State Intellectual Property Office.

Where an application for registration of a layout-design is made in other forms prescribed by the State Intellectual Property Office, the prescribed requirements shall be met.

Where an applicant entrusts a patent agency to apply to the State Intellectual Property Office for the registration of a layout-design or to go through other formalities, it shall simultaneously submit a power of attorney indicating the authority of entrustment.

Where there are more than two applicants and no patent agency has been appointed, unless otherwise stated in the application form, the first applicant specified in the application form shall be the representative.

Article 13 Application Form

The application for layout-design registration shall clearly state the following:

(1) the name, address or residence of the applicant;

(2) the nationality of the applicant;

(3) the name of the layout-design;

(4) the name of the creator of the layout-design;

(5) the date of completion of the creation of the layout-design;

(6) classification of the integrated circuits used in the layout-design;

(7) where the applicant appoints a patent agency, the relevant matters that should be indicated; If the applicant has not appointed a patent agency, the name, address, postal code and telephone number of the contact person;

(8) where the layout-design contains any act of commercial exploitation mentioned in Article 17 of the Regulations, the date of occurrence of the act;

(9) where there is confidential information in the layout-design registration application, the page number and total page number of the copy or drawing of the layer containing the confidential information;

(10)signature or seal of the applicant or the patent agency;

(11) list of application documents;

(12) list of additional documents and samples;

(13) other matters that need to be noted.

Article 14 Copies or drawings

Copies or drawings of layout-designs submitted in accordance with Article 16 of the Regulations shall meet the following requirements:

(1) The paper copies of the copies or drawings shall be enlarged to at least 20 times the size of the integrated circuits designed and produced with the said layout; The applicant may also provide an electronic version of the copy or drawing; Where a copy or drawing of an electronic version is submitted, it shall contain all the information of the layout-design and indicate the data format of the file;

(2) Where the copies or drawings have multiple sheets of paper, they shall be numbered in sequence and accompanied by a catalogue;

(3) Paper copies or drawings shall be in A4 paper format; If it is larger than A4 paper, it should be folded into A4 paper format;

(4) The copy or drawing may be accompanied by a simple written description describing the structure, technology, function and other matters requiring explanation of the layout design of the integrated circuit.

Article 15 Applications involving confidential information

Where the layout-design has not been put into commercial use before the date of application, the layout-design registration application may contain confidential information, the proportion of which shall not exceed 50% of the total area of the layout-design of the integrated circuit. The page number and total page number of the copy or drawing of the layer containing confidential information shall be the same as that filled in the layout-design registration application form.

Where the layoutdesign registration application contains confidential information, the copy of the layer containing the confidential information or the drawing paper shall be submitted in another confidential document bag. Except for infringement proceedings or administrative procedures, no one shall access or copy the confidential information.

Article 16 Sample of integrated circuit

Where the layout-design has been put into commercial use before the date of application, four samples of integrated circuits containing the layout-design shall be submitted when applying for registration, and shall meet the following requirements:

(1) The four samples of integrated circuits submitted shall be placed in special appliances that can ensure that they are not damaged, and accompanied by a completed form prepared by the State Intellectual Property Office;

(2) The name of the applicant, the application number and the name of the integrated circuit shall be indicated on the surface of the appliance;

(3) The integrated circuit sample in the appliance shall be fixed in an appropriate manner, shall not be damaged, and shall be able to be stored in the dryer for at least ten years.

Article 17 Inadmissibility

The State Intellectual Property Office shall not accept an application for the registration of a layout-design under any of the following circumstances and shall notify the applicant:

(1) Failing to submit an application form for layout-design registration or a copy or drawing of a layout-design, having been put into commercial use but failing to submit a sample of an integrated circuit, or submitting a submission inconsistent with the above;

(2) The country to which the foreign applicant belongs has not signed the relevant layout-design protection agreement with China or has jointly joined the relevant international treaties with China;

(3) The layout-design involved is not protected as provided for in Article 12 of the Regulations;

(4) The layout-design involved is not registered as provided for in Article 17 of the Regulations;

(5) The application documents are not in Chinese;

(6) Where the category of the application is unclear or it is difficult to determine whether it belongs to a layout-design;

(7) Failing to entrust an agency according to regulations;

(8) The application form for layout-design registration is incomplete.

Article 18 Correction and amendment of documents

In addition to the provisions of Article 17 of these Rules, where the application documents do not meet the conditions provided for in the Regulations and these Rules, the applicant shall make corrections within 2 months from the date of receiving the notice of examination opinions from the State Intellectual Property Office. Corrections shall be made in accordance with the requirements of the notice of review opinions. If no reply is made within the time limit, the application shall be deemed withdrawn.

If, after the applicant has made corrections in accordance with the examination opinions of the State Intellectual Property Office, the application documents still do not comply with the provisions of the Regulations and these Rules, the State Intellectual Property Office shall make a decision to reject.

The State Intellectual Property Office may, on its own, correct obvious errors in characters and symbols in the layout-design application documents. The State Intellectual Property Office shall notify the applicant of its own amendment.

Article 19 Rejection of an application

Except as otherwise provided for in paragraph 2 of Article 18 of these Rules, where the layout-design applied for registration has one of the following items, the State Intellectual Property Office shall make a decision to reject it, stating the reasons on which it is based:

(1) Clearly does not comply with the provisions of Article 2 (1) and (2) of the Regulations;

(2) Obviously not in conformity with the provisions of Article 5 of the Regulations.

Article 20 The exclusive right of layout-design shall come into force

Where no reason for rejection of the layout-design registration application is found after preliminary examination, the State Intellectual Property Office shall issue a layout-design registration certificate and announce it on the Internet website of the State Intellectual Property Office and China Intellectual Property Daily. The exclusive right of layout-design shall take effect from the date of application.

Article 21 Registration Certificate

The layout-design registration certificate issued by the State Intellectual Property Office shall include the following:

(1) the name and address of the owner of the layout-design right;

(2) the name of the layout-design;

(3) if the layout-design has been put into commercial use before the date of application, the time of its first commercial use;

(4) the date of application for layout-design and the date of completion of creation;

(5) the date of issuance of the layout design;

(6) the registration number of the layout-design;

(7) the seal of the State Intellectual Property Office and the signature of the person in charge.

Article 22 Correction

The State Intellectual Property Office shall, upon discovery of any errors in the announcement of a layout-design, promptly correct them and publish the corrections made.

Chapter III Review, reconsideration and revocation of exclusive rights of layout-design registration applications

Article 23 Organs for review and cancellation

The Patent Reexamination Board of the State Intellectual Property Office (hereinafter referred to as the Patent Reexamination Board) shall be responsible for the examination of the request for reexamination lodged against the decision of the State Intellectual Property Office rejecting the application for registration of layout-designs, and for the examination of cases of revocation of the exclusive right of layout-designs.

Article 24 A request for review

Where a request for reexamination is made to the Patent Reexamination Board, a request for reexamination shall be submitted, stating the reasons and, if necessary, supporting relevant evidence. Where the request for reexamination does not comply with the relevant provisions of Article 19 of the Regulations, the Patent Reexamination Board shall not accept it.

Where the request for reexamination does not conform to the prescribed form, the person making the request for reexamination shall make corrections within the time limit specified by the Patent Reexamination Board. If no correction is made at the expiration of the time limit, the request for review shall be deemed not to have been made.

Article 25 Modification of documents in the review procedure

The person making the request for reexamination may, when filing the request for reexamination or responding to the notice of reexamination issued by the Patent Reexamination Board, modify the layout-design application documents. However, the amendment shall be limited to eliminating the defects indicated in the rejection decision or the notice of review.

The application for amendment shall be submitted in duplicate.

Article 26 Review decision

Where, after examination, the Patent Reexamination Board considers that the request for reexamination of the application for registration of a layout-design is not in conformity with the relevant provisions of the Regulations or these Rules, it shall notify the applicant for reexamination and require him to state his opinions within a specified time limit. If no reply is made at the expiration of the time limit, the request for review shall be deemed to have been withdrawn; Where, after stating its opinions or making amendments, the Patent Reexamination Board considers that the application is still not in conformity with the relevant provisions of the Regulations and these Rules, it shall make a reexamination decision to maintain the original decision of rejection.

Where, after re-examination, the Patent Reexamination Board considers that the original rejection decision is not in conformity with the relevant provisions of the Regulations and these Rules, or considers that the amended application documents have eliminated the defects pointed out in the original rejection decision, it shall revoke the original rejection decision and notify the original examination department to register and announce the application.

In its reexamination decision, the Patent Reexamination Board shall clearly state the reasons for the reexamination decision and notify the applicant for layout-design registration.

Article 27 Withdrawal of a request for review

The applicant for reexamination may withdraw his request for reexamination before the Patent Reexamination Board makes a decision.

Where the applicant for reexamination withdraws his request for reexamination before the Patent Reexamination Board makes a decision, the reexamination procedure shall be terminated.

Article 28 Request for reconsideration

Any party who refuses to accept or disputes the following specific administrative acts made by the State Intellectual Property Office may apply to the administrative reconsideration department of the State Intellectual Property Office for reconsideration:

(1) Refusing to accept an application for a layout-design;

(2) Rhere the layout-design application is deemed to have been withdrawn;

(3) Requests for restoration of the relevant rights are not allowed;

(4) Other specific administrative acts that infringe upon the legitimate rights and interests of the parties concerned.

Article 29 Cancellation procedure

Where, after the announcement of the layout-design registration, it is found that the registered exclusive right of layout-design does not conform to the provisions of Article 2, subparagraphs (1), (2), Articles 3, 4, 5, 12 or 17 of the Regulations on the Protection of Layout-designs for Integrated Circuits, the Patent Reexamination Board shall revoke the exclusive right of the layout-design.

Where the exclusive right of a layout-design is revoked, it shall first notify the layout-design right holder and require him to state his opinions within a specified time limit. Where no reply has been made within the time limit, the decision of the Patent Reexamination Board to revoke the exclusive right of the layout-design shall not be affected.

The Patent Reexamination Board's decision to revoke the exclusive right of a layout-design shall state clearly the reasons on which it is based, and notify the holder of the layout-design right.

Article 30 Announcement of cancellation decision

If the decision of the Patent Reexamination Board to revoke the exclusive right of the layoutdesign is not brought before the people's court within the prescribed time limit, or if the judgment of the people's court upholding the decision of the Patent Reexamination Board to revoke the exclusive right of the layoutdesign takes effect, the State Intellectual Property Office shall announce the decision to revoke the exclusive right of the layoutdesign on the Internet website of the State Intellectual Property Office and in China Intellectual Property News.

The revocation of the exclusive right of layout-design shall be deemed to have ceased to exist from the beginning.

Chapter IV Protection of the exclusive right of layout-design

Article 31 Waiver of exclusive right of layout-design

Prior to the expiration of the term of protection of the exclusive right of a layout-design, the right holder may renounce the exclusive right by submitting a written statement to the State Intellectual Property Office.

Where the exclusive right of the layout-design has been licensed or pledged by another person, the consent of the licensee or pledgee shall be obtained for the waiver of the exclusive right of the layout-design.

The waiver of the exclusive right of a layout-design shall be registered and announced by the State Intellectual Property Office.

Article 32 Conditions for accepting cases of infringement disputes by the State Intellectual Property Office

Where, in accordance with the provisions of Article 31 of the Regulations, the State Intellectual Property Office is requested to handle a layout-design exclusive right infringement dispute, the following conditions shall be met:

(1) The layout-design has been registered and announced;

(2) The claimant is the owner of the layout-design right or an entity or individual having a direct interest in the infringement dispute;

(3) There is a clear person requested;

(4) There are clear matters of the request and specific facts and reasons;

(5) Neither party has brought a suit in the people's court for the infringement dispute.

Article 33 Suspension and resumption of relevant proceedings

Where a party concerned has brought a suit before a people's court for a dispute over the right to apply for a layout-design or the ownership of the exclusive right to a layout-design, it may request the State Intellectual Property Office to suspend the relevant procedures.

Where a request for suspension of the relevant procedures is made in accordance with the provisions of the preceding paragraph, a written request shall be submitted to the State Intellectual Property Office and a copy of the relevant acceptance documents of the people's court shall be attached.

After the judgment made by the people's court becomes effective, the parties shall go through the formalities for resuming the relevant procedures with the State Intellectual Property Office. Where, within one year from the date of the request for suspension, a dispute over the ownership of the layout-design application right or the exclusive right of the layout-design cannot be settled, and it is necessary to continue to suspend the relevant procedures, the claimant shall request an extension of the suspension within the same time limit. If no extension is requested at the expiration of the time limit, the State Intellectual Property Office shall resume the relevant procedures on its own.

Where the people's court rules to take preservation measures for the exclusive right of layout-design in the trial of a civil case, the State Intellectual Property Office shall suspend the relevant procedures for the exclusive right of layout-design to be preserved when assisting in the execution. If the people's court does not order the continuation of the preservation measures upon the expiration of the preservation period, the State Intellectual Property Office shall resume the relevant procedures on its own.

Chapter V Expenses

Article 34 Fees payable

When applying to the State Intellectual Property Office for the registration of a layout-design and going through other formalities, the following fees shall be paid:

(1)Layout-design registration fee;

(2) Handling fee for changes in the description, request fee for extension of time limit, and request fee for restoration of rights;

(3) Fees for request for review;

(4) Request fee for involuntary license and request fee for adjudication of involuntary license royalties.

The amounts of the various fees listed in the preceding paragraph shall be separately prescribed by the price administrative department under The State Council jointly with the State Intellectual Property Office.

Article 35 Payment procedures

The various fees prescribed in the Regulations and these Rules may be paid directly to the State Intellectual Property Office, or by remittance through post offices or banks, or by other means prescribed by the State Intellectual Property Office.

Where payment is made by post office or bank, at least the correct application number and the name of the fee paid shall be indicated on the remittance form submitted to the State Intellectual Property Office. Those who do not comply with the provisions of this paragraph shall be deemed to have not gone through the payment procedures.

If a fee is paid directly to the State Intellectual Property Office, the payment date shall be the payment date; If the fee is paid by post remittance, the date of the postmark of the post office remittance shall be the payment date; If the fee is paid by bank transfer, the date of actual remittance by the bank shall be the payment date. However, if the payment date exceeds 15 days from the date of remittance to the date of receipt by the State Intellectual Property Office, the date of receipt by the State Intellectual Property Office shall be the payment date, unless a certificate is issued by the post office or the bank.

Where the layout-design registration fee is overpaid, repaid or wrongly paid, the party concerned may file a request for refund with the State Intellectual Property Office, but the request shall be made within one year from the payment date.

Article 36 Payment period

The applicant shall pay the layout-design registration fee within 2 months after receiving the notice of acceptance; If the payment has not been made or has not been made in full at the time limit, the application shall be deemed to have been withdrawn.

Where a party requests restoration of rights or reexamination, it shall pay the fees within the relevant time limit prescribed in the Regulations and these Rules; If the payment has not been made or has not been made in full at the expiration of the time limit, it shall be deemed that no request has been made.

The handling fee for the change of the description, the involuntary license request fee, and the adjudication request fee for the involuntary license use fee shall be paid within 1 month from the date of making the request; The request fee for extension of time limit shall be paid before the expiration of the corresponding time limit; If the payment has not been made or has not been made in full at the expiration of the time limit, it shall be deemed that no request has been made.

Chapter VI Supplementary Provisions

Article 37 Layout-design register

The State Intellectual Property Office shall set up a layout-design register to register the following matters:

(1) The name, nationality and address of the layout-design right holder and their change;

(2) Registration of layout-designs;

(3) Transfer and inheritance of the exclusive right of layout-design;

(4) Waiver of the exclusive right of layout-design;

(5) Pledge, preservation and termination of the exclusive right of layoutdesign;

(6) Revocation of the exclusive right of layout-design;

(7) Termination of the exclusive right of layout-design;

(8) Restoration of the exclusive right of layout-design;

(9) Involuntary license for the exploitation of the exclusive right of layout-design.

Article 38 Layout-design Announcement

The State Intellectual Property Office regularly publishes on the Internet website of the State Intellectual Property Office and on the China Intellectual Property Journal the Bulletin on the registration of layout designs, promulgate or announce the following contents:

(1) Items of description recorded in the register of layout-design;

(2) Notice to a party whose address is unknown;

(3) Corrections made by the State Intellectual Property Office;

(4) Other relevant matters.

Article 39 Public inspection and reproduction

After the layout-design registration announcement, the public may request to consult the layout-design registration book or request the State Intellectual Property Office to provide a copy of the registration book. The public may also request to see copies of the layout-design or paper drawings.

No one may consult or copy the copies or drawings of the electronic versions mentioned in Article 14 of these Rules, except as required by infringement proceedings or administrative procedures.

Article 40 Handling of invalid case files

Where the application for registration of a layout-design is withdrawn, deemed withdrawn or rejected, and the layout-design exclusive right is declared abandoned, revoked or terminated, the case file relating to the layout-design application or the layout-design exclusive right shall not be kept after the expiration of three years from the date on which the application or the exclusive right becomes invalid.

Article 41 Mailing of documents

Registered letters shall be used to mail documents relating to the application or the exclusive right of layout-design to the State Intellectual Property Office, and one letter shall contain only the same application document. Copies of electronic versions or drawings and samples of integrated circuits shall be sent in such a way as to ensure that they will not be damaged in the course of mailing.

Article 42 Interpretation of these Rules

The State Intellectual Property Office shall be responsible for the interpretation of these Rules.

Article 43 Date of implementation of these Rules

These Rules shall come into force as of October 1, 2001.