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Integrated Circuit Layout Protection Act of Taiwan - 1996

(Promulgated on August 11, 1995 and effective as of February 11, 1996)

 

Article 1 Objectives
This Act is enacted to protect integrated layouts, harmonize the public interests of the society and to promote the development of national science, technology and economy.

Article 2 Definitions
As referred to in this Act, the following terms mean the following:
1. "Integrated circuit" is the final or intermediate form of products capable of performing electronic circuit functions, in which transistors, capacitors, resistors, or other electronic components and their interconnections are deposited on or integrated with a semiconductor material.
2. "Circuit layout" is a predetermined, two-dimensional or three-dimensional pattern of electronic components and interconnecting leads on an integrated circuit.
3. "Distribute" means to sell, license, transfer, or to display for sale, license or transfer purposes.
4. "Commercial exploitation" means to distribute publicly for commercial purposes a circuit layout or an integrated circuit embodying the circuit layout.
5. "Reproduce" means to duplicate a circuit layout or an integrated circuit embodying the circuit layout by means of any optical, electronic device or any process.
6. "Reverse engineering" means the analysis or evaluation of the original electronic circuit diagram or function diagram embodied in an integrated circuit thereby designing a functionally compatible circuit layout for an integrated circuit.

Article 3 Administration
The Ministry of Economic Affairs shall be responsible for the supervision of all matters prescribed in this Act.
The Ministry of Economic Affairs shall appoint a special agency to administer matters as referred to in the preceding paragraph. If necessary, public interest organizations or groups may be entrusted to be in charge of part of the related matters.

Article 4 Confidential status of applications
Any staff of the government agency in charge of circuit layout related affairs or public interest organizations or groups referred to in Paragraph 2 of the preceding Article shall not disclose to others any confidential information they have obtained or become aware in the course of their occupational or official duties.

Article 5 Eligibility requirements for foreign applicants
Under any of the following circumstances, a national of any foreign country may apply for registration of circuit layout in accordance with this Act:
1. the home country of the foreign national is a party to any international treaty signed by the Republic of China, or has concluded with this country a treaty or agreement for reciprocal protection of circuit layouts, or has established with the Republic of China an agreement for the reciprocal protection of circuit layouts signed by organizations or institutions in the two countries and approved by the Ministry of Economic Affairs, or has been verified as affording protection to circuit layouts of nationals of the Republic of China; and
2. the first commercial exploitation takes place in the territory of the Republic of China. However, this provision shall not apply unless it has been verified that the home country of the foreign national affords protection to nationals of the Republic of China under the same conditions.

Article 6 Filing by other than creator
Unless otherwise prescribed in this Act, the creator of a circuit layout or his successor or assignee may apply for registration of the circuit layout.
With reference to the preceding paragraph, where there are a plurality of creators, successors or assignees, they shall jointly apply for registration. However, if it is otherwise provided in a contract, such contract shall prevail.

Article 7 Ownership of circuit layouts created by employees or commissioned persons
Whenever a circuit layout is created by an employee in the performance of his duties, the employer shall be entitled to the right to apply for registration. However, if it is otherwise provided in a contract, said contract shall prevail.
The provision of the preceding paragraph shall, mutatis mutandis, be applicable to any circuit layout created by a commissioned person.
The employee or commissioned person as referred to in the preceding two paragraphs shall enjoy the right to have his name indicated as the creator based on his contribution to the creation.

Article 8 Provisions as to agents
An applicant may appoint an agent who has a domicile in the territory of the Republic of China to act on his behalf in connection with application for circuit layout registration and other related matters.
A person having no domicile or place of business in the territory of the Republic of China shall appoint an agent who has a domicile in the territory of the Republic of China to act on his behalf in connection with application for circuit layout registration and other related matters.

Article 9 Appointment of Representative
Whenever two or more persons jointly file an application, or jointly own circuit layout rights, all relevant procedures shall be executed in the name of all parties unless a representative has been designated upon mutual agreement; in addition, a person shall be elected from amongst themselves to receive service of process. In the event that no one has been designated to receive service of process, the government agency in charge of circuit layout related affairs shall direct all communications to the first-named applicant and notify the others of the matters concerned.

Article 10 Application for registration/ specification and drawings/ filing by other than creator
To apply for registration of a circuit layout, a completed application form accompanied by the specification, and drawings or photos of the circuit layout shall be submitted to the government agency in charge of circuit layout related affairs. Where the circuit layout has been commercially exploited and an integrated circuit product is available at the time of application, such product shall also be submitted.
Where the drawings, photos or integrated circuit product referred to in the preceding paragraph involve confidential information on the manufacturing process of an integrated circuit, the applicant may specify the reasons in writing in order to obtain the permission of the government agency in charge of circuit layout related affairs to submit other materials in lieu thereof.
An application, if filed by the creator's assignee or heir, shall state the name of the creator, and be accompanied by documentary evidence of transfer or inheritance.

Article 11 Application forms
The application form referred to in the preceding Article shall contain the following:
1. the applicant's name, nationality and residential address. In the event of a legal entity, then its business name, place of business and the representative's name;
2. the creator's name, nationality and residential address. In the event of a legal entity, then its business name, place of business and the representative's name;
3. the title and date of creation; and
4. the day, month and year of the first commercial exploitation in the event of commercial exploitation prior to the filing date.

Article 12 Requirements for receiving filing date
A filing date shall be obtained when the government fee and all the documents prescribed in Article 10 of this Act have been submitted.

Article 13 Time limit for filing
Application for registration of a circuit layout shall be refused acceptance if filed in excess of two years after the date of the first commercial exploitation thereof.

Article 14 Delays in meeting time limits
Whenever the statutory or otherwise prescribed deadlines in applications for circuit layout registration and other related procedures are not met, or there is a default in payment of fees, the belated action shall be refused. This provision, however, shall not apply if action has been taken to make up for the delay or default before a relevant decision is rendered by the government agency in charge.
Whenever an applicant fails to meet a statutory deadline due to force majeure or other factors not attributable to the applicant, within thirty days from the day following the elimination of the cause for delay, a written report specifying the cause for delay may be submitted to the government agency in charge of circuit layout related affairs along with a request to restore the application or the procedure at issue. This provision, however, shall not apply if the delay of the statutory deadline has exceeded one year.
At the time of filing a request for restoration, the delayed procedure shall be executed simultaneously.

Article 15 Rights provided by registration
Protection of a circuit layout shall be asserted under this Act only upon registration.
Upon registration of a circuit layout, a certificate shall be issued.

Article 16 Registrability requirements
A circuit layout susceptible of protection under this Act shall meet the following requirements:
1. the design is the fruit of the creator's intellectual efforts without plagiarism; and
2. the circuit layout was not ordinary, common or known at the time of creation to the integrated circuit industry and circuit layout designers.
In the event of a circuit layout developed by combining ordinary, common or known components or interconnections, the protection accorded to the circuit layout shall be restricted to the combination as a whole that meets the requirements prescribed in the preceding paragraph.

Article 17 Scope of exclusive rights
The owner of circuit layout rights shall have the exclusive right to prevent others from committing the following acts without his consent:
1. producing the circuit layout in whole or in part; and
2. importing or distributing for commercial purposes the circuit layout or any integrated circuit embodying the circuit layout.

Article 18 Limitations on exclusive rights/ exemption of certain acts
The rights conferred by a circuit layout shall not apply in any of the following cases:
1. where the circuit layout is reproduced and then evaluated or analyzed for research, education or reverse engineering purposes;
2. where a circuit layout complying with the requirements set forth in Article 16 of this Act is developed or an integrated circuit is produced in view of the results of analysis or evaluation as referred to in the preceding Item;
3. where the owner of legally reproduced circuit layouts or integrated circuits imports or distributes the legally possessed circuit layouts or integrated circuits;
4. where one imports or distributes illegally produced integrated circuits he has obtained without the knowledge that the integrated circuits infringe another's circuit layout rights; and
5. where one has independently created an identical circuit layout or integrated circuit.

Article 19 Term of circuit layout rights
The duration term of circuit layout rights shall be ten years calculated from either of the following dates whichever is earlier:
1. the filing date of the application for circuit layout registration; and
2. the date of the first commercial exploitation.

Article 20 Recordation of name change
Whenever there is a change in the personal or business name of a circuit layout rights owner, an application for recordation of such change shall be made.

Article 21 Restrictions on disposition of rights by joint owners
Whenever circuit layout rights are jointly owned by two or more persons, they shall not be transferred, licensed or pledged without the unanimous consent of all joint owners.
Without the unanimous consent of all other joint owners of circuit layout rights, no joint owner may transfer, license or pledge his share of the ownership in favor of another person. No joint owner may withhold consent thereto without justifiable cause.
Where a joint owner of circuit layout rights has waived his share of the rights, such share shall be distributed to the other joint owners commensurate with their respective shares.
Where a joint owner is deceased without heirs or dissolves without successors, the provision of the preceding paragraph shall, mutatis mutandis, be applicable.

Article 22 Effect of recordation
In the event of disposition of circuit layout rights in any of the following manners, a recordation application together with contracts or documentary evidence must be filed with the government agency in charge of circuit layout related affairs in the name of all parties concerned; such arrangement shall have no locus standi against a bona fide third party unless it has been duly recorded:
1. transfer;
2. license; and
3. establishment, transfer, alteration, or extinguishment of a pledge.
Whenever circuit layout rights have been inherited, an application for reissuance of the certificate of registration, accompanied by documentary evidence of inheritance, shall be filed with the government agency in charge of circuit layout related affairs.

Article 23 Restrictions on use of pledged circuit layout by pledgee
Where circuit layout rights are deposited as the subject of a pledge, the pledgee shall not make use of the circuit layout unless otherwise provided by a contract.

Article 24 Application for compulsory license/royalty payable to circuit layout rights owners/ limitation on disposition of compulsory license
In the case of non-commercial use for the purpose of promoting the public welfare, the government agency in charge of circuit layout related affairs may grant a compulsory license in response to the request of an applicant who intends to use the circuit layout. The use thereof shall be restricted to supplying largely the need of the domestic market.
Whenever a circuit layout rights owner has conducted any act irrevocably determined by the court or by the Fair Trade Committee under the Executive Yuan to constitute unfair competition, the government agency in charge of circuit layout related affairs may grant a compulsory license at the request of an applicant notwithstanding the non-existence of the circumstances set forth in the preceding paragraph.
Upon receipt of an application for a compulsory license, the government agency in charge of circuit layout related affairs shall send a duplicate copy thereof to the circuit layout rights owner with a request that a counterstatement be submitted within three months. If no counterstatement is filed within the prescribed period, the agency may dispose of the matter ex officio.
The compulsory license shall not preclude others from obtaining a license in respect of the same circuit layout rights.

The compulsory licensee shall pay adequate compensation to the circuit layout rights owner. Should any dispute over the amount of compensation arise, the government agency in charge of circuit layout related affairs shall decide the amount to be paid.
The compulsory license shall not be transferred, licensed, or pledged unless a transfer which includes the entire business enterprise involved with the compulsory license is effected.
Upon the elimination of the cause for the grant of the compulsory license referred to in the first or second paragraph of this Article, the government agency in charge of circuit layout related affairs may terminate the compulsory license upon request.
Where the compulsory licensee has not properly acted to meet the purpose of the compulsory license, the government agency in charge of circuit layout related affairs may, either in response to a request from the circuit layout rights owner or, ex officio, revoke the compulsory license.

Article 25 Expiration of circuit layout rights
Unless otherwise prescribed in this Act, circuit layout rights shall expire:
1. on the day following the expiration date of the term of the circuit layout rights;
2. on the date the circuit layout rights are vested with the national treasury in accordance with the applicable law, provided that the owner thereof is deceased and no one claims to be his heir;
3. on the day the circuit layout rights are vested with a local autonomous body in accordance with the applicable law, provided that the owner thereof is a legal entity which dissolves; or
4. on the date the circuit layout rights owner's written statement expressing the abandonment of his right is submitted.

Article 26 Limitations on disposition of circuit layout rights by owner
A circuit layout rights owner shall not abandon his circuit layout rights without first obtaining the consent of his licensee or pledgee.
Circuit layout rights shall not be abandoned in part.

Article 27 Grounds for cancellation of circuit layout rights
Under any of the following circumstances, the government agency in charge of circuit layout related affairs shall, ex officio, or upon request of an interested party, cancel the registration of a circuit layout and recall the registration certificate within a prescribed period of time after the cancellation has become irrevocable; if the certificate can not be recalled, an announcement which nullifies the certificate shall be published:
1. where a final court decision has been rendered confirming that there are no circuit layout rights;
2. whenever registration of a circuit layout is found to be in violation of the provisions of Articles 5 to 7, 10, 13, 38 or 39 of this Act; and
3. whenever circuit layout rights are found to be in violation of the provision of Article 16 of this Act.

Article 28 Register of Circuit Layout Rights
Where applications for registration of circuit layouts are found to be in compliance with the provisions of this Act, the government agency in charge of circuit layout related affairs shall enter them into the Register of Circuit Layout Rights and publish them in an official gazette.
The provision of the preceding paragraph shall apply to revocation, extinguishment or abandonment of circuit layout rights.

Article 29 Remedies for infringement
In the event of infringement of circuit layout rights, the owner thereof may claim damages and request restraint of the infringement; at the presence of evidence of likelihood of infringement, the owner may request an injunction preventing such infringement.
An exclusive licensee shall be entitled to the requests as referred to in the preceding paragraph as well. This provision shall, however, not apply unless the circuit layout rights owner fails to make such requests regardless of the exclusive licensee's notice and there is no contrary stipulation in an agreement between the owner and the licensee.
The provisions of the preceding two paragraphs shall, mutatis mutandis, apply, where a third party has knowingly or it can be proved by facts that the third party has knowingly imported or distributed for commercial purposes products which contain integrated circuits produced from illegally reproduced circuit layouts. This provision shall, however, not apply if the infringer has separated the integrated circuits from the products.
Whenever a circuit layout rights owner or his exclusive licensee initiates infringement action in accordance with the preceding paragraph, he shall submit a written infringement assessment report.
Where two or more infringers jointly infringe circuit layout rights, they shall be jointly and severally liable for the owner's damages.

Article 30 Assessment of damages (I)
To claim damages pursuant to the preceding Article, one of the following methods may be selected to assess damages:
1. according to the provisions of Article 216 of the Civil Code. However, when the injured party is unable to provide evidence of the actual loss of profits, damages may be calculated by subtracting the amount of profits gained after infringement from the amount it would have made by the exploitation of the infringed circuit layout;
2. according to the profits gained by the infringer as a result of his infringement. However, when the infringer is unable to provide documentation proving the costs of production or other necessary expenditures, the total gross revenue of the infringing circuit layouts or integrated circuits embodying the circuit layouts shall be deemed to be the infringer's profits; and
3. according to the assessment made by the court in a sum of no more than New Taiwan Dollars 5,000,000, depending upon the seriousness of the infringing act.

Article 31 Assessment of damages (II)
Where, subsequent to the receipt of a written notice stating the facts of infringement and accompanied by an infringement assessment report from the circuit layout rights owner, an owner as referred to in Item 4, Article 18 of this Act continues to import or distribute for commercial purposes integrated circuits originally procured in good faith, the circuit layout rights owner may claim damages based on the royalties normally charged for use of the infringed circuit layout.

Article 32 Destruction of infringing articles/publication of Judgment in newspaper
An injured party as referred to in Article 29 of this Act may request destruction of all integrated circuits embodying the infringing circuit layout and publication of the Judgment, wholly or in part, in newspapers at the expense of the losing party.

Article 33 Availability of civil remedies to foreign legal entities
Foreign legal entities or organizations, recognized in the Republic of China or not, may institute civil actions for issues arising under this Act.

Article 34 Tribunal
The court may set up a special forum or appoint experts to handle circuit layout litigation cases.

Article 35 Relation to other laws
The provisions of this Act shall not affect any right and interest obtained by circuit layout rights owners or third parties pursuant to other laws.

Article 36 Assessment and Mediation Committee
The government agency in charge of circuit layout related affairs may establish an Assessment and Mediation Committee for the administration of assessment, dispute resolution and compulsory license related matters, all in connection with circuit layout rights.

Regulations governing the establishment of the Committee referred to in the preceding paragraph shall be prescribed by the competent authority.

Article 37 Maintenance and storage of official files
The Register of Circuit Layout Rights and all related records shall be permanently kept by the government agency in charge of circuit layout related affairs and may be stored by means of microfilms, magnetic disks, magnetic tapes, or laser disks.

Article 38 Government fees
Government fees shall be paid when an application is filed under this Act; amount of the payable fees shall be prescribed by the competent authority.

Article 39 Filing of circuit layouts commercially exploited before the effective date of this Act
Where a circuit layout was first commercially exploited within two years prior to the effective date of this Act, registration of such circuit layout may be applied for within six months from the effective date of this Act.

Article 40 Enforcement Rules
Enforcement Rules for this Act shall be prescribed by the competent authority.

Article 41 Effective Date
This Act shall take effect six months after the date of its promulgation.

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