Haworth & Lexon Law Newsletter
No.5, 2002 (Total:No.9) May. 20th, 2002
Edited by Haworth & Lexon
"Haworth & Lexon Law Newsletter" is issued every month, mainly introducing the legal change in the fields of Corporate, Securities, Foreign investment, Intellectual property rights, International trade etc. with necessary comment. All the comments do not mean the legal opinion of our firm and the firm does not have any legal liability for such comment. Should you have any interest in any topics or any questions please feel free to contact the firm. You will be expected to have satisfactory response from the professional attorney of our firm.
How to protect the exclusive right of layout-design of an integrated circuit
Latest Laws and Regulations
★The Regulations for Administration of the Registration of Foreign Producers of Food Imports
★Notification on strengthening management of net culture market
★The Regulations on the Grant of State-Owned Land Use Rights by Invitation for Tenders, Auction or Listing
★Amendment of the Law on Inspections of Commodity Imports and Exports
★The Measures for the Examination, Approval, Registration, Supervision and Administration of Certification Bodies, Certification Training Organizations and Certification Consultancies
How to protect the exclusive right of layout-design of integrated circuits
A layout-design of integrated circuits is a kind of intellectual property right under the protection of the TRIPS agreement. The Regulations for an Integrated Circuit Layout-design Protection and its implementing rules were promulgated on April and September respectively, which came into effect both on Oct 1, 2001.
According to the above Regulations, a layout-design of an integrated circuit is defined as the "three-dimension disposition of the elements, at least one of which is an active element, and two or more of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture". The protective layout-design should be considered with creativity, which is the result of its creator's own intellectual effort and is not commonplace among creators of layout-designs and manufacturers of integrated circuits at the time of its creation.
Unlike the copyright, only through the registration at the national IPR administrative department, namely, the national IPR bureau, can the layout-design right be valid. The registration of a layout-design requires the submission of its application form and materials such as its copy or picture sample etc. Chinese units or individuals can submit the relative application by themselves as well as through patent agencies by mandate. Foreign applicants can obtain the right only through agencies appointed by the national IPR bureau.
After the registration, the holder of the layout-design right enjoys the following rights:
1. Copying the creative entirety or any part of the protected layout-design.
2. Putting into commercial use, a protected layout-design or an integrated circuit incorporating a layout-design or goods in which a protected layout-design is incorporated.
The protection period is 10 years, starting from the registration date or the first time for commercial use purpose in any place over the world, between which the earlier is considered as the starting date. The right holder can transfer the right to others or permit the use of its layout-design. Once the infringement is found, the right holder is entitled to apply preliminary injunction before the litigation, request the infringing party stop relative actions and have the property preservation started.
The compensation amount for the infringement upon a layout-design right is the benefit the infringing party gained or the loss the infringed party suffered, including the reasonable expense paid for stopping the infringement by the infringed party.
Latest Laws and Regulations
"The Regulations for Administration of the Registration of Foreign Producers of Food Imports" was issued by the State Administration of Quality Supervision, Inspection and Quarantine on March 14, 2002.
According to the Regulations, authorized by the State Council, the State Certification and Accreditation Administration (CNCA) are responsible for the registration and supervision and management of foreign producers of food imports (including all kinds of finished products and raw material providing for people to eat or drink).Any foreign producer that ships products on "the List of Food Imports Subject to Enterprise Registration" to China must apply for registration to the CNCA. It is prohibited to import food products of unregistered foreign producers.
The Regulations clearly stipulate the registration conditions, the application and approval procedure, etc. While undertaking the supervision and management, if necessary, the CNCA is entitled to recheck the registered foreign producers of food imports. In case it is found as unqualified, the CNCA will, in accordance with its location, notify the state (local) authorities in charge, which will urge its rectification within specified time, or cancel its registered qualification.
"Notification on strengthening management of net culture market" was promulgated by Ministry of Culture on May 10th, 2002. Pursuant to the Notification, Ministry of Culture shall be in charge of the daily supervision and carry out the management of license for operation of the business shop which offer on-line services involving operating artworks, audiovisual products, net games, performance activities, "net bar" etc. Therefore, Ministry of Culture has put up the department of net culture.
Ministry of Culture has planned to take special harness action to these business shops throughout the country from May.10th, 2002 to Oct.1st, 2002. If it meets the requirement "Administration rules on Internet business shop", it could apply for "Certification of culture business operation". Moreover, the notification has also set out some new requirements to establishing of the business. For example, it is required that "It is not allowed to open Internet business shop such as Net Bar in the areas of 200 meters away from primary and middle school" and "In case minors under 16 years old comes into the shop he/she must be accompanied by his/her guardian。"
The Regulations on the Grant of State-Owned Land Use Rights by Invitation for Tenders, Auction or Listing were issued by the Ministry of Land and Resources on May 9, 2002 and will come into force on July 1, 2002. With 28 provisions, the Regulations mainly specify the legislative authority, principle, scope, procedure and legal responsibility of granting of state-owned land use rights by invitation for tenders, auction or listing. It also establishes and fulfills three systems as following: 1. the system of granting of state-owned land use rights of business purpose by invitation for tenders, auction or listing; 2. The arrangement and implementation procedure system for the grant of state-owned land use rights by invitation for tenders, auction or listing which is open, fair and right; 3. The strict legal responsibility. The regulations specify the arrangement and implementation procedure system, including planning, drawing grant documents, releasing means and content of the announcement etc.
In accordance with the Regulations, the land use rights for all types of land uses for business purposes such as for commercial, tourism, entertainment and commodity housing land use purposes should be granted by the tender invitation, auction or listing methods.
The Decision of the Standing Committee of the National People's Congress on Amending the "Law of the People's Republic of China on the Inspection of Commodity Imports and Exports" was adopted by the Standing Committee of the National People's Congress on April 28, 2002. As the first amendment of law which was adopted by the Standing Committee of the National People's Congress after China's accession to the WTO, it will come into force on October 1, 2002.
The amendment mainly includes six changes as following:
1. The purpose and scope on statutory inspection;
2. The title of list on statutory inspection;
3. The content on statutory inspection;
4. The rules on the standards to be used for inspections have been changed. The law imposes mandatory inspection requirements for imports and exports on a list instead of engagement in foreign trade contract;
5. A system of certification for imports and exports is in accordance with the domestic commodities;
6. The amendments add a new provision on confidentiality duties of commodity inspection staff.
The Measures for the Examination, Approval, Registration, Supervision and Administration of Certification Bodies, Certification Training Organizations and Certification Consultancies was issued by the State Certification and Accreditation Administration, the State Administration of Quality Supervision, Inspection and Quarantine, the State Administration for Industry and Commerce, and the Ministry of Foreign Trade and Economic Cooperation, which will come into force on May 1, 2002.
The Measurement indicates those legally founded Certification Bodies, Certification Training Organizations and Certification Consultancies must reregister before July 31, 2002. Once overdue, they won't be allowed to continue the relative business. According to this Measurement, the registered capital of foreign funded firms must be at least US$ 350,000; the foreign investors must have obtained state accreditation qualifications or recognition in their own countries, with at least three years relevant service experience. The above rules also apply to those foreign certification bodies, training organizations and consultancies which wish to establish resident representative offices in China.
The regulations also stipulates that examination and approval of applications to establishing certification bodies, certification training organizations and certification consultancies in which foreign investors are to hold a controlling interest will not be permitted before December 11, 2003. For those establishing in the form of wholly foreign-owned, they will not be permitted before December 11, 2005.