The originality of layout design in Vietnam

Currently, science and technology are developing strongly, but that brings a limitation in that the designs of integrated circuits are widely stolen and not protected. Since then, the protection conditions for layout design have become more common. So what is the condition for the originality of the layout design? To answer your questions, Viet An Law gives an article about the originality of layout design in Vietnam.

Legal basis

• Law on Intellectual Property 2005, as amended and supplemented in 2009, 2019, 2022 ;
• Circular 01/2007/TT-BKHCN guiding Decree 103/2006/ND-CP.

What is layout design?

Pursuant to the provisions of Clause 14, Article 4 of the Intellectual Property Law 2005, as amended and supplemented in 2009, 2019, and 2022, an integrated circuit is a product in the form of finished or semi-finished products and in which the components are with at least one active element, some or all of the interconnections embedded within or on top of a semiconductor wafer to perform an electronic function. Integrated circuits can also be called ICs, chips, or microelectronic circuits. Accordingly, integrated circuits are subject to design and are produced after the design is available. The protection of intellectual property rights is not for integrated circuits which is layout design.

Semiconductor integrated circuit layout design (also known as layout design) is the spatial structure of circuit elements and their interconnections in a semiconductor integrated circuit. Components of an integrated circuit for a protected layout design include:

• Interface elements;
• Programmable devices;
• The physical form represents the layout design;
• The function of storing information or processing information logic.

Industrial property rights to layout designs are established on the basis of decisions on granting protection titles of competent agencies according to registration procedures prescribed in the Intellectual Property Law or on recognition of international registration. international treaties to which the Socialist Republic of Vietnam is a signatory.

Right to register layout design in Vietnam

Individuals and organizations that have the right to register layout designs include:

• The author creates the layout design at his own expense and effort;
• Organizations and individuals shall invest funds and material means for authors in the form of hiring or assigning jobs unless otherwise agreed by the parties and such agreement is not contrary to the Government’s regulations. on the right to register for layout designs created by using techniques, facilities, and funding from the state budget.

Note:

• In case many organizations and individuals jointly create or invest to create a layout design, all such organizations and individuals will have the right to register the layout design and that registration right is only valid for the layout design when all organizations and individuals agree.
• Persons with the right to registration have the right to transfer the registration right to another organization or individual in the form of a written contract, to inherit or inherit in accordance with the law, even after submitting a registration application.

In addition, according to the provisions of Clause 25, Article 1 of the Law on Intellectual Property Amendment 2022 (Article 86a is added to the Law on Intellectual Property 2005) on the right to register for layout designs as a result of Scientific and technological tasks using the entire state budget are as follows:

• The right to design a layout is assigned to the leading organization automatically and without compensation unless the right to design the layout is the result of a scientific and technological task in the field of national defense and security.
• For layout designs that are the result of scientific and technological tasks invested with many capital sources, including part of the state budget, the part of the right to register the layout design corresponds to the proportion of the layout design. The state budget is assigned to the presiding organization automatically and without compensation, except for cases where the right to design layout is the result of scientific and technological tasks in the field of national defense and security.

Accordingly, the rights to the layout design in this case are also restricted from assignment. According to Article 139.6 of the Law on Intellectual Property, the objects to be assigned this right only include organizations established under Vietnamese law and individuals who are Vietnamese citizens and permanently residing in Vietnam. When receiving the transfer, the recipient must perform the corresponding obligations of the host organization in accordance with the provisions of this Law.

Conditions for layout design protection in Vietnam

According to Article 68 of the Intellectual Property Law, there are two specific conditions for the protection of layout designs in order to be consistent with the practice of protecting layout designs in the world, including :

• Originality;
• Commercial novelty.

Objects not protected in the name of layout design include:

• Principles, processes, systems and methods implemented by semiconductor integrators;
• Information and software contained in the integrated semiconductor.

The originality of layout design in Vietnam

Layout design is considered original if the following conditions are satisfied:

• The layout design is the result of the author’s own creative labor;
• The design was not widely known to the creator of the layout design and manufacturers of semiconductor integrated circuits at the time of its creation.

Accordingly, the originality of the layout design differs from the originality specified by the copyright. Under copyright law, originality concerns the form of expression of an idea and not the idea itself or the meaning within it. That is the work is independently created, spontaneously and without copy from another work.

On the other hand, the originality of the layout design is considered in the “whole” combination of elements, and common connections and must meet the conditions that are the result of the author’s own creative labor and have not been was widely known to layout design creators and semiconductor integrated circuit manufacturers at the time of layout design creation.

The difference comes from the originality of the layout design considering the “whole”, the essence of the layout design is the “arrangement” of the components, and elements of the circuit, i.e. it is made from the author’s creativity by arranging things that are already available.

In addition, the originality of the layout design also differs from the originality of the related rights. The originality of the related right is reflected in the fact that the related right is only determined according to the objects of the related right that are created for the first time. Determining originality from this perspective is often applied to recordings and broadcasts. Or originality is determined on the basis of creative labor bearing the subject’s personal imprint.  

The fact that related rights arise on the basis of a pre-existing use of the work does not affect the originality of the objects it protects. That is, created by the author himself, not created by copying. This is different from the originality of the layout design created by the author’s creativity by arranging things that are already available.

Procedure for registration of layout design in Vietnam

Procedures for registration of a semiconductor integrated circuit layout design are carried out according to the following steps:

Step 1: Submit and receive the application

After completing the documents, you can submit the application directly by post or apply online.

Direct application form

Submit the application directly or via postal service to the NOIP’s headquarters in Hanoi or its representative offices in Ho Chi Minh City and Da Nang city.

Note: In case the application for registration of layout design is submitted by post, it will be necessary to transfer the money via the postal service, then a photocopy of the Receipt of Remittance and send it together with the application file to one of the offices. Office of the National Office of Intellectual Property to prove the amount paid.

Online application form

Need to prepare a digital certificate and digital signature have an account on the online application receiving system and have the account approved by the National Office of Intellectual Property.

Step 2: Verify the application form

After receiving the application for layout design of semiconductor integrated circuits, the application for layout design will be examined for form within 01 month from the date of application. This is the procedure to check compliance with the regulations on the form of the application so as to make a conclusion that the application is valid or not.

• In case the application is valid, the NOIP will send the applicant a decision to accept the valid application. It also clearly states that the subjects stated in the application are likely to be granted the Registration Certificate of layout design of semiconductor integrated circuits.
• In case the application is invalid, the NOIP shall send the applicant a decision to refuse to accept the application.

Step 3: Publication of the application

After a decision on accepting a valid application is made, the application will be published in the Industrial Property Official Gazette.

The application publication time will be about 02 months from the date of accepting the valid application.

Step 4: Notice of intention to issue and issue a decision to grant or refuse the Certificate of Registration

According to regulations on notification of intended issuance, within 3 months from the date on which the layout design of semiconductor integrated circuits is published in the Industrial Property Official Gazette and there is no third party objection to the registration of the layout design or have an objection but the processing results prove that such objection is not valid, the National Office of Intellectual Property will announce its intention to issue the Certificate of registration of layout design of semiconductor integrated circuits to with the object stated in the application and set a time limit of 03 months from the date of notification for the applicant to pay the publication fee, registration fee, and fee for granting a protection title.

Customers who have a need for advice on the service of registration of layout design and need to get answers to questions related to the originality of the layout design, please contact Viet An Law for the best support.