Loi sur la protection des schémas de configuration de circuits integrés B.E. 2543 (2000), Thaïlande

Protection of Layout—Designs of Integrated Circuits Act,
B.E. 2543 (2000)

TABLE OF CONTENTS

Sections

[Without Title] 1 - 2

Chapter 1: General Provisions 3 - 5

Chapter 2: Protection of Layout-Designs

Part 1: Application for Protection of Layout-Designs 6 - 13

Part 2: Registration of Layout-Design and Term of Protection 14 - 23

Chapter 3: Authorisation to Exercise Rights and Assignment of Rights in Layout-Designs 24 - 27

Chapter 4: Revocation of Registration and Termination of Protection of Layout-Design 28 - 31

Chapter 5: Compulsory License to Exercise Rights in Layout-Design 32 - 38

Chapter 6: Layout-Design Board 39 - 47

Chapter 7: Penalties 48 -53

BHUMIBOL ADULYADEJ, REX;

Given on the 4^th Day of May B.E. 2543;
Being the 55^th Year of the Present Reign.

His Majesty King Bhumibol Adulyadej is graciously pleased to proclaim that:

Whereas it is expedient to have a law on protection of layout-designs of integrated circuits;

Whereas it is aware that this Act contains certain provisions in relation to the restriction of rights and liberties of persons, in respect of which Section 29, in conjunction with Section 48 and Section 50 of the Constitution of the Kingdom of Thailand so permit by virtue of law;

Be it, therefore, enacted by the King, by and with the advice and consent of the National Assembly, as follows.

1. This Act shall be cited as the “Protection of Layout-Designs of Integrated Circuits Act, B.E. 2543 (2000)”.

2. This Act shall enter into force after the expiration of ninety days as from the date of its publication in the Government Gazette.

Chapter 1
General Provisions

3. In this Act:

“integrated circuit” means a product in a final or an intermediate form for the purpose of performing an electronic function, consisting of elements which can stimulate an electronic operation, and interconnections that connect some or all of these elements, and which are placed in layers and integrally formed on or in the same piece of a semiconductor material;

“layout-design” means any pattern, layout or image, however appeared in any form or method, made for the purpose of displaying the disposition of being an integrated circuit;

“layout-design certificate” means a certificate issued to grant protection of a layout-design as provided in this Act;

“commercial exploitation” means an exploitation by selling, leasing or by any other act to obtain remuneration or any other interest and shall include offering for the purpose of exploitation;

“right holder” means a person who receives a layout-design certificate and shall include an assignee;

“Board” means the Layout-Design Board;

“competent official” means a person appointed by the Minister for the execution of this Act;

“Director General” means the Director General of the Department of Intellectual Property;

“Minister” means the Minister having charge and control of the execution of this Act.

4. The Minister of Commerce shall have charge and control of the execution of this Act and shall have the power to appoint competent officials, issue Ministerial Regulations prescribing fees not exceeding those prescribed in the annex to this Act, reduce or exempt fees, and prescribe other matters for the execution of this Act.

The Ministerial Regulation shall enter into force upon its publication in the Government Gazette.

5. The protection of layout-designs of integrated circuits shall be in accordance with the provisions prescribed in this Act and shall not be subject to the law on patent.

Chapter 2
Protection of Layout-Designs

Part 1
Application for Protection of Layout-Designs

6. Layout-designs eligible for protection under this Act are as follows;

(1) a layout-design which a designer has created by himself and is not commonplace in the integrated circuit industry;

(2) a layout-design which a designer has created by combining elements, interconnections of layout-designs or integrated circuits that are commonplace in the integrated circuit industry in a way of resulting in the layout-design which is not commonplace in the integrated circuit industry.

7. A layout-design designer shall have a right to apply for protection of a layout-design under this Act.

8. A right to apply for protection of a layout-design created by a designer in a capacity as an official or employee shall belong to that official or employee unless otherwise agreed in writing.

In the case where the designer has created a layout-design in the course of commission, the employer shall have a right to apply for protection of the layout-design, unless otherwise agreed in writing.

9. A state agency, state enterprise, local government organisation or other state authority which is a juristic person shall have a right to apply for protection of a layout-design created in the course of its service contract or according to its order or under its control, unless otherwise agreed in writing.

10. A right to apply for protection of a layout-design is assignable and transferable by way of inheritance. The assignment of the right to apply for protection under this Act shall be done in writing bearing signatures of the assignor and assignee.

11. If two or more persons have jointly created a layout-design, they shall have the right to apply for protection of the layout-design jointly.

In the case where any joint layout-design designer refuses to participate in the application for the protection of the layout-design or cannot be contacted with or has no right to apply for the protection thereof, the other layout-design designers may apply on behalf of themselves for the protection of the layout-design jointly created.

The joint layout-design designer who did not participate in the application for the protection of the layout-design may subsequently make a request, by filing an application together with an evidence proving that the applicant is an actual joint designer, to participate in the application for the protection of the layout-design at any time before the issuance of the layout-design certificate to the joint designer who previously has filed the application for the protection. A competent official shall investigate whether the applicant is a joint designer and then shall report to the Director General for making a decision. In so doing, the date of the investigation shall be notified to and a copy of the application shall be sent to the applicant for the protection and the other joint applicants for the protection of the layout-design.

The joint layout-design designer shall have a right to appeal against the Director General’s order to the Board within ninety days as from the date of the notification thereof. The appeal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

When the Board has given a decision, the joint layout-design designer who disagrees with the Board’s decision shall have a right to bring the case to the Court within ninety days as from the date of the notification thereof. In the absence of instituting an action within the prescribed period, the decision of the Board shall be deemed final.

The filing of the application and investigation under paragraph three shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

12. In the case where two or more persons has independently created the same layout-design, a person who first filed the application for protection shall have a right to apply for the protection thereof. In the case where the applications have been filed on the same date, the applicants shall enter into an agreement on whether the right to apply for the protection should be given to any of them exclusively or to all of them jointly. If no agreement has been made within the period prescribed by the Director General, the applicant who first filed the application for the protection on that day shall have the right to apply for the protection

13. A person having a right to apply for protection of a layout-design under this Act shall possess any of the following qualifications:

(1) being of a Thai nationality or being of a juristic person whose principal office is located in Thailand;

(2) being of a nationality of a country which is a party to an international convention or agreement on the protection of layout-designs of integrated circuits to which Thailand is also a party;

(3) having domicile or place for carrying out a real and effective business relating to the creation of layout-designs or the production of integrated circuits in Thailand or a country which is a party to an international convention or agreement on the protection of layout-designs of integrated circuits to which Thailand is also a party.

Part 2
Registration of Layout-Design and Term of Protection

14. A person who has a right to apply for protection under Section 7, Section 8, Section 9, Section 10, Section 11, or Section 12 and possesses qualifications in accordance with Section 13 shall have a right to apply for registration of a layout-design.

In the case where a layout-design has been commercially exploited, whether within or outside the Kingdom, the application for registration of the layout-design shall be done within two years as from the date of the first commercial exploitation thereof.

A layout-design which has not been commercially exploited within fifteen years as from the date of completion of the layout-design’s creation shall not be applied for registration.

15. The application for registration of a layout-design for having protection under this Act shall be in accordance with the rules, procedures and conditions prescribed in the Ministerial Regulation.

An application for registration shall at least have the following particulars:

(1) name, nationality, domicile and address of the designer as well as any assignment of a right to apply for protection, provided that there is such an assignment;

(2) the date of creation of the layout-design and the date of a first commercial exploitation thereof including description of the commercial exploitation;

(3) a painting or photograph of drawing identifying the layout-design or other articles producing the like result, including data on electronic function of the integrated circuit;

(4) a sample of an integrated circuit in which the layout-design is incorporated, in the case where it has been commercially exploited; and

(5) other particulars as prescribed in the Ministerial Regulation.

16. In effecting the registration of the layout-design, the competent official shall examine the application for registration as to its conformity with the requirements set forth in Section 14 and Section 15 and shall prepare an examination report for submission to the Director General.

17. In the case where the application for registration of the layout-design is in conformity with the requirements set forth in Section 14 and Section 15, the Director General shall make an order effecting the registration, issue a layout-design certificate to the applicant, publish the registration and notify the applicant in writing to pay fee for the issuance of the layout-design certificate and fee for the publication, in accordance with the procedures and periods prescribed in the Ministerial Regulation.

If the applicant fails to pay the fees prescribed in paragraph one, the applicant shall be deemed to have abandoned the application for registration.

The layout-design certificate shall be in the form prescribed in the Ministerial Regulation.

In the case where the layout-design certificate was lost or materially damaged, the right holder may apply for a replacement of the layout-design certificate in accordance with the rules and procedures prescribed in the Ministerial Regulation.

18. In the case where the application for registration of the layout-design is not in conformity with the requirements set forth in Section 14 or Section 15, the Director General shall order rejection of the application for registration and shall notify the applicant in writing of the order together with reasons without delay.

The applicant shall have a right to appeal against the Director General’s order to the Board within ninety days as from the date of the receipt of the notification thereof. The appeal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

When the Board has made a decision, the applicant who disagrees with the Board’s decision shall have a right to bring the case to the Court within ninety days as from the date of the receipt of the notification thereof. In the absence of instituting an action within the prescribed period, the decision of the Board shall be deemed final.

19. The rights in the layout-design shall be protected under this Act upon registration and issuance of a certificate.

The layout-design certificate shall be for the term of ten years as from the date of filing the application for registration under this Act or the date of the first commercial exploitation whether within or outside the Kingdom, whichever shall first occur, but shall not exceed fifteen years as from the date of the completion of the layout-design’s creation.

20. The right holder shall pay an annual fee as prescribed in the Ministerial Regulation as from the second year of the term of protection of the layout -design and the payment shall be made within sixty day as from the commencement of the second year and of every year thereafter.

If the right holder fails to pay the annual fee prescribed in paragraph one, he shall pay a surcharge of 30 percent of the annual fee.

If the right holder fails to pay the annual fee and the surcharge within six months as from the date of the expiration of the period prescribed in paragraph one, the rights in the layout-design shall be deemed lapsed. In this case, the competent official shall publish the lapse of the protection of the layout-design.

21. The right holder may at one time pay an entire amount of the annual fees in advance instead of an annually payment.

In the case where the right holder has paid the annual fee in advance but the rate of the annual fee is changed subsequently or the right holder surrenders his rights in the layout-design or there is a cancellation of the registration of the layout-design, the right holder shall not be required to pay the insufficient amount of the annual fee nor shall not be entitled to any refund of the annual fee paid in advance.

22. The right holder shall have the exclusive right to perform any of the following acts:

(1) reproducing the layout-design in respect of which he is accorded protection under this Act;

(2) importing into the Kingdom, selling or distributing by any mean for commercial purposes the layout-design in respect of which he is accorded protection or an integrated circuit in which the protected layout-design is incorporated or a product in which such integrated circuit is incorporated.

Any of the following acts under paragraph one performed without the authorisation of the right holder shall be regarded as an infringement of the right holder’s rights.

In the case where there is an infringement of the right holder’s rights by committing any of the acts in (2) in respect of an integrated circuit or a product in which the layout-design of the right holder is incorporated, such act is permissible if the person committing it has removed the layout-design of the right holder from the integrated circuit or product, or subsequently has been authorised by the right holder to perform such act.

23. Any of the following acts in respect of the layout-design protected under this Act shall not be regarded as an infringement of the right holder’s rights:

(1) the reproduction for the purpose of evaluation, analysis, research or education;

(2) the incorporation of a layout-design created by the act under (1) and having characteristics as prescribed in Section 6 into an integrated circuit, or an act under Section 22 in respect of such a layout-design;

(3) the reproduction for the interest of oneself which is not an act for commercial interest;

(4) the act under Section 22 (2 ) in respect of an integrated circuit in which the protected layout-design of the right holder is incorporated or in respect of a product incorporating such integrated circuit; provided that the person committing it did not know or had no reasonable ground to know, at the time of acquiring such integrated circuit or product, that the layout-design infringing the right holder’s rights was incorporated. In such case, the person committing it may, after being notified that such integrated circuit or product incorporates the layout-design infringing the right holder’s rights, continue to perform any of the acts under Section 22 (2) in respect of the integrated circuits or products which remain in stock or were ordered for distribution prior to the notification thereof, but shall pay a royalty to the right holder in a reasonable amount in the course of trade;

(5) the act under Section 22 (2) in respect of a layout-design or an integrated circuit lawfully acquired from the commercial exploitation of the right holder;

(6) any of the acts under Section 22 by a person who created a layout-design identical to a layout-design in respect of which the right holder is accorded protection, provided that he has independently created it by himself.

Chapter 3
Authorisation to Exercise Rights
and Assignment of Rights in Layout-Designs

24. The right holder may authorise any person, by granting a license, to exercise the rights in the layout-design conferred to him under Section 22 or may assign such rights to other person. The authorisation to exercise rights and assignment of rights shall be made in writing and registered with the Director General.

In the case of having joint right holders, the authorisation to exercise rights or assignment of rights in the layout-design under paragraph one shall be made upon consent of all the joint right holders. In the case where the Director General has ordered effecting registration of the license contract or assignment contract, the Director General shall order publication of the registration of such contract.

The application for the registration of the license contract and assignment contract shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

25. In granting a license under Section 24, the right holder shall not prescribe conditions, restrictions of rights or remuneration in the manner of restricting or preventing competition under the law on trade competition.

In the case where the Director General considers any clause in the license contract to be contrary to the provision under paragraph one, the Director General shall report to the Board for its decision. If the Board considers such clause to be contrary to the provision under paragraph one, then the Director General shall refuse the registration of the contract unless the parties have intended the valid part of the contract to be separable from the invalid part. In this latter circumstance, the Director General may order effecting the registration of the valid part of the contract.

When the Board has made a decision under paragraph two, any interested party who disagrees with the Board’s decision shall have a right to bring the case to the Court within ninety days as from the date of the receipt of the notification thereof. In the absence of instituting an action within the prescribed period, the decision of the Board shall be deemed final.

26. In the case where the right holder has authorised other person to exercise rights in the layout-design in contrary to paragraph one of Section 24, the Director General may request the Board to order the revocation of the registration of the layout-design in accordance with the rules and procedures prescribed in the Ministerial Regulation.

27. The application for registration of a transfer of rights in a layout-design by way of inheritance shall be in accordance with the rules, procedures and conditions prescribed in the Ministerial Regulation.

In the case where the right holder has no heir, the protection under the layout-design certificate shall be deemed terminated.

Chapter 4
Revocation of Registration
and Termination of Protection of Layout-Design

28. Within one year as from the date of the publication of the registration of the layout-design, any interested person may request the Director General to order revoking the registration of the layout-design which is not in conformity with the requirements prescribed in Section 14 or Section 15.

When the Director General has considered an examination report and made an order rejecting the application for the revocation of the registration or an order revoking the registration of the layout-design, the order together with reasons shall be notified to the applicant and the right holder without delay.

The applicant or the right holder shall have a right to appeal to the Board against the Director General’s order within ninety days as from the date of the receipt of the notification thereof.

The application for the revocation of the registration under paragraph one and the appeal against the Director General’s order under paragraph three shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

29. When the Board has made a decision on the appeal under Section 28, the decision together with reasons shall be notified to the applicant and the right holder without delay.

The applicant or the right holder who disagrees with the Board’s decision shall have a right to bring the case to the Court within ninety days as from the date of the receipt of the notification thereof. In the absence of instituting an action within the prescribed period, the decision of the Board shall be deemed final.

30. In the case where there is a registration of a layout-design which is not in conformity with Section 6, such registration shall be deemed invalid.

In the case where the Director General has considered the registered layout-design to have no characteristics as prescribed in Section 6, the Director General shall then order an investigation of matters of facts and report to the Board for ordering a revocation of the registration of such layout-design. In investigating thereof, the right holder may give a statement or furnish any evidence and the Director General may call upon any person to give a statement or furnish any further evidence.

If the right holder disagrees with the Board’s order revoking the registration, he shall have a right to bring the case to the Court within ninety days as from the date of the receipt of the notification thereof. In the absence of instituting an action within the prescribed period, the Board’s order shall be deemed final.

31. The rights in the layout-design of the right holder shall be deemed terminated when:

(1) the right holder surrenders his rights in the layout-design by returning the layout-design certificate;

(2) the term of protection of a layout-design expires under Section 19 or the protection is deemed lapsed under paragraph three of Section 20.

(3) the right holder dies and has no heir; or

(4) the Director General or the Board has made an order or a decision or the Court has a final judgement to revoke the registration of the layout-design.

Chapter 5
Compulsory License to Exercise Rights
in Layout-Design

32. At any time after the expiration of three years as from the date of the registration and issuance of a layout-design certificate, any persons may apply to the Director General for a license to exercise the rights in the layout-design conferred to the right holder under Section 22, provided that the right holder exercises his rights in the manner of restricting or preventing competition under the law on trade competition.

In applying for the license under paragraph one, the applicant must prove that he has made an effort to obtain the license from the right holder having proposed the terms and remuneration reasonably sufficient under the circumstance of the case in accordance with the rules, procedures and conditions prescribed in the Ministerial Regulation but no agreement can be reached within a reasonable period.

33. When the Director General has made an order relating to the application for the license filed under Section 32, the applicant, the right holder or the licensee may appeal to the Board against the order within ninety days as from the date of the receipt of the notification thereof. The appeal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

When the Board has made a decision on the appeal under paragraph one, the decision together with reasons shall be notified to the parties concerned without delay.

The applicant, the right holder or the licensee who disagrees with the Board’s decision shall have a right to bring the case to the Court within ninety days as from the date of the receipt of the notification thereof. In the absence of instituting an action within the prescribed period, the decision of the Board shall be deemed final.

34. For the necessity of national defense, maintenance of national security, maintenance of safety, health or environment, or for other public non-commercial interests, the state agency, state enterprise, local government organisation or other state authority which is a juristic person may apply for authorisation of the use of any of the rights in layout-design under Section 22 by itself or entrusting other person to use such right.

In exercising the rights under paragraph one, the agency applying for the license shall pay an equitable remuneration to the right holder or licensee under Section 24 and the Director General shall notify the right holder or licensee in writing without delay.

In applying for the license under paragraph one, the agency applying for the license shall file an application with the Director General for the proposal of remuneration and terms for exercising the rights. If the right holder or the licensee disagrees with the amount of the remuneration, the right holder or the licensee shall have a right to appeal to the Board within ninety days as from the date of the receipt of the notification thereof. The appeal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

When the Board has made a decision, its decision shall be deemed final.

35. In the state of war or emergency for the necessity of national defense and maintenance of national security, the Prime Minister with the approval of the Council of the Ministers shall have a power to issue an order to exercise any right in a layout-design upon paying an equitable remuneration to the right holder or licensee and shall notify the right holder or licensee in writing without delay.

If the right holder or licensee disagrees with the amount of the remuneration, the right holder or licensee shall have a right to appeal to the Board within ninety days as from the date of the receipt of the notification thereof. The appeal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

When the Board has made a decision, its decision shall be deemed final.

36. The authorisation to exercise rights in this Chapter shall not prejudice the right holder’s rights to exercise his rights or to grant a license to other person to exercise such rights and the person to whom the license is granted may not grant a license to other person to exercise the authorised rights.

37. In the case where the circumstance has changed from the time of having authorised the exercise of rights under this Chapter, the right owner or licensee under Section 24 may file an application with the Director General for amending the prescribed term to be complied with by the authorised person.

In the case where it appears that the reason for the authorisation to exercise rights have ceased to exist and is not likely to recur and the cancellation of the authorisation to exercise rights does not unreasonably affect the rights or interests of the person authorised to exercise the rights or in the case where it appears that the person authorised to exercise the rights does not comply with the prescribed terms, the right holder or licensee under Section 24 may file an application with the Director General for cancellation of the authorisation.

The application for amending the term under paragraph one or canceling the authorisation to exercise rights under paragraph two shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

38. The right holder or licensee may appeal to the Board against the Director General’s decision under Section 37 within ninety days as from the date of the receipt of the notification thereof. The appeal shall be in accordance with the rules and procedures prescribed in the Ministerial Regulation.

The right holder or licensee who disagrees with the Board’s decision shall have a right to bring the case to the Court within ninety days as from the date of the receipt of the notification thereof. In the absence of instituting an action within the prescribed period, the Board’s decision shall be deemed final.

Chapter 6
Layout-Design Board

39. There shall be a Board called the “Layout-Design Board” consisting of the Permanent Secretary of the Ministry of Commerce as Chairman and not more than twelve qualified members in the fields of science, engineer, industry and law appointed by the Council of Ministers as members, six of whom must be appointed from qualified members in the private sector.

The Board shall appoint officials of the Department of Intellectual Property to be its secretary and assistant secretary.

40. The Board shall have the following powers and duties:

(1) to submit recommendation or give advice to the Minister on the issuance of the Ministerial Regulation under this Act;

(2) to consider and decide appeals against orders of the Director General under this Act;

(3) to consider other matters relating to layout-designs as entrusted by the Minister;

(4) to perform other acts as prescribed in this Act.

41. A qualified member shall hold office for a term of two years. The outgoing qualified member may be reappointed for not more than two consecutive terms.

42. In addition to the vacation of office upon the expiration of the term, a qualified member vacates office upon:

(1) death;

(2) resignation;

(3) being discharged by the Council of Ministers;

(4) becoming a bankrupt;

(5) becoming an incompetent or a quasi-incompetent person; or

(6) having been imprisoned by a final judgement to a term of imprisonment, except for an offence committed through negligence or a petty offence.

43. In the case where there is an appointment of a qualified member to replace a qualified member who vacates office before expiration of his term or in the case where there is an additional appointment of a qualified member during the term of qualified members already appointed, the appointee shall hold office for the remaining term of the qualified member already appointed.

44. In the case where new qualified members have not yet been appointed after the expiration of the term of the qualified members, the qualified members whose term has expired shall perform their duties for the time being until the new qualified members are appointed.

45. A quorum for meeting of the Board shall consist of not less than one half of the total number of members. If the Chairman is not present at the meeting or is not able to perform the duty, the members present shall elect one of its members to preside over the meeting.

A decision of the meeting shall be taken by a majority of votes. Each member shall have one vote. In case of any equality of votes, the presiding chairman shall have an additional casting vote.

46. The Board shall have a power to appoint a subcommittee for the consideration or performance of any act as entrusted by the Board and Section 45 shall apply mutatis mutandis to a meeting of the subcommittee.

47. In performing duties, the Board or subcommittee shall have a power to issue a written order requiring any relevant person to give statements or furnish any document or article as a supporting material for consideration as deemed necessary and in accordance with the regulations prescribed by the Board.

Chapter 7
Penalties

48. Any person who acts under Section 22 (1) without consent of the right holder shall be liable to a fine from fifty thousand Baht up to five hundred thousand Baht.

49. Any person who acts under Section 22 (2) without consent of the right holder shall be liable to a fine from twenty thousand Baht up to two hundred thousand Baht.

50. Any person who files an application for or furnishes any other document relating to the registration of layout-design or the assignment or authorisation to exercise rights in layout-design by giving false statements to the competent official or the Board shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding one hundred thousand Baht or to both.

51. Any person who violates Section 47 shall be liable to a fine not exceeding five thousand Baht.

52. In the case where a person who commits an offence punishable under this Act is a juristic person, the managing director, manager or the persons representing such juristic person shall also be liable to the penalty imposed by law for such offence unless it can be proved that the act of the juristic person has been conducted without their knowledge or consent.

53. In the case where the Court has entered a judgement that an offender has committed an offence under Section 48 or Section 49, the Court shall order the seizure of all layout-designs, integrated circuits or products infringing the rights of the right holder that are in possession of the offender. In the case where the Court thinks fit, it may order the destruction of such layout-designs, integrated circuits or products or the performance of any other act to prevent future distribution thereof.

In the case where the offender has removed the layout-designs or integrated circuits of the right holder from the integrated circuits or products infringing the rights of the right holder, the Court may impose the seizure’s order or any other act under paragraph one only on the integrated circuits or products that still remain infringing of the right of the right holder.

Countersigned by

Chuan Leekpai
Prime Minister

Schedule of Fees