Integrated Circuits Topography Act 2003

Link to law: http://laws.gov.ag/acts/2003/a2003-20.pdf

No. 200f 2003. The Integrated CImits Topography 1 ANTIGUA
Act 2003. AND

BARBUDA

[ L.S. ]
I Assent,

James B. Carlisle,
Governor-General.

ANTIGUA AND BARBUDA

No. 20 of 2003

AN ACT to provide for the protection of topographizs (layout-
designs) of integrated circuits.

[ 3lst December, 20031

ENACTED by the Parliament of Antigua and Barbuda as fol-
lows -

1. This Act may be cited as the Integrated Circuits Topogra- short title and
phjj Act 2003 and comes into force on such date as the Minister commencement.
may fm by notice published in the Gazette.

2. In this Act - Interpretation.

"Court" means the High Court;

"integrated circuit" means aproduct, in its final form or an
intermediate form in which the elements, at least one of
which is an active element, and some or all of the intercon-

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AND

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The Integrated Cimtits Topography No. 20 ofm.
Act 2003.

nections are integrally formed in or on a piece of material
and which is intended to perform an electronic function;

"layout-design" is synonymous with "topography" and
means the three-dimensional disposition, however ex-
pressed, of the elements, at least one of which is an active
element, and of some or all of the inter-connections of an
integrated circuit, or such a three-dimensional disposition
prepared for an integrated circuit intended for rnanufac-
ture;

"Minister" means the Minister to whom responsibility for-
intellectual property is assigned;

"Register" means the Register of layout-Designs (Topog-
raphies) of Integrated Circuits;

"Registrar" means @e Registrar of the Intellectual Prop-
erty Office appointed under Registrar of Intellectual Prop-
erty Offlce Act, 2003 and any reference to the Registrar
shall be construed as including a reference to any officer
discharging the functions of the Registrar;

"right holder" means the person who is to be regarded as
the beneficiary of the protection referred to in section 6.

Protection. 3. (1) Protection under this Act may be obtained for layout-
designs of integrated circuits if and to the extent that they are
original within the meaning of section 4.

(2) Registration may only be applied for if the layout-design
has not yet been commercially exploited, or has been commer-
cially exploited for not more than two years anywhere in the
world.

(3) Protection under this Act shall not be available for layout-
designs which have been commercially exploited, anywhere in
the world, for more than two years prior to the entry into force of
this Act.

Originality. 4. (1) A layout-design shall be considered to be original if it
is the result of its creator's own intellectual effort and is not
commonplace among creators of layout-designs and manufac-
turers of integrated circuits at the time of its creation.

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(2) A layout-design consisting of a combination of elements
and inter-comections that are commonplace shall be protected
only if the combination taken as a whole is original within the
meaning of subsection (1).

5. (1) The right to layout-design protection shall belong to ~ g h t to
the creator of the layout-design and may be assigned or trans- p'ot6ction.
ferred by succession.

(2) Where several persons have jointly created a layout-de-
sign, the right to layout-design protection shall belong to them
jointly.

(3) Where the layout-design has been created in execution of
a commission or an employment contract, the right to layout-
design protection shall belong, in the absence of contractual
provisions to the contrary, to the person who commissioned the
work or to the employer.

6. (1) Protection under this Act shall not depend upon Effect of protec-
whether or not the integrated citcuit which incorporates the pro- tion.
tected layout-design is itself incorporated in an article.

(2) Subject to subsection (3) and to section 14, the protection
shall have the effect that the following acts shall be unlawful if
performed without the authorization of the right-holder:

(a) reproducing, whether by incorporation in an inte-
grated circuit or otherwise, the protected layout-de-
sign in its entirety or any part thereof, except the act
of reproducing any part that does not comply with
the requirement of originality referred to in section 4;

(b) importing, selling or otherwise distributing for com-
mercial purposes the protected layout-design, an
integrated circuit in which the protected layout-de-
sign is incorporated or an article incorporating such
an integrated circuit in so far as it continues to con-
tain an unlawfully reproduced layout-design.

(3) The effect of protection of a layoutdesign under this Act
shall not extend to -

(a) the reproduction of the protected layout-design for
private pupscs or for the sole purpose of evalua-
tion, ady& reseuch or teaching;

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AND Act 2003.

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(b) the incorporation in an integrated circuit of a layout-
design created on the basis of such analysis or evalu-
ation and which is itself original within the meaning
of section 4 or the performance of any of the acts
referred to in subsection (2) in respect of that layout-
design.

(c) the performance of any of the acts referred to in sub-
section (2)(b) where the act is performed in respect
of a protected layout-design, or in respect of an inte-
grated circuit in which such a layout-design is incor-
porated, that has been put on the market by or with
the consent of the right-holder;

(d) the performance of any of the acts referred to in sub-
section (2)(6) in respect of an integrated circuit in-
corporating an unlawfully reproduced layout-design
or any article incorporating such an integrated cir-
cuit where the person performing or ordering such
an act did not know and had no reasonable ground
to know; when acquiring the integrated circuit or the
article incorporating such an integrated circuit, that
it incorporated an unlawfully reproduced layout-de-
sign; however after the time that such person has
received sufficient notice that the layoutdesign was
unlawfully reproduced, that person may perform any
of those acts only with respect to the stock on hand
or ordered before such time and shall be liable to pay
to the right-holder a sum equivalent to a reasonable
royalty such as would be payable under a freely ne-
gotiated licence in respect of such a layout-design;
or

(e) the performance of any of the acts referred to in sub-
section (2)(b) where the act is performed in respect
of an identical layout-design which is original and
has been mated independently by a third party.

Commencement 7. (1) Protection of a layout-design under this Act shall com-
8Ud duntion of mence-
protection.

(a) on the date of the fnst commercial exploitation,
anywhere in the world, of the layoutdeign by
or with the cansent of the right-hok, provided

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that an application for protection is filed by the right-
holder with the Registrar within the time limit referred
to in section 3(2); or

(b) on the filing date accorded to the application for the
registration of the layout-design filed by the right-
holder, if the layout-design has not been previously
exploited commercially anywhere in the world.

(2) Protection of a layout-design under this Act shall termi-
nate at the end of the tenth calendar year after the date of com-
mencement of protection.

8. (1) An application for the registration of a layout-design Filing require-
shall be in writing and shall be filed with the Registrar. ments.

(2) A separate application shall be filed for each layout-de-
sign.

(3) The application shall -

(a) contain a request for registration of the layout-de-
sign in the register and a brief and precise designa-
tion of the layout-design;

(b) indicate the name, address, nationality and, if differ-
ent from the address, the habitual residence of the
applicant;

(c) accompanied by the authorization of agent appoint-
ing the representative of the applicant, if any;

(d) be accompanied by a copy or drawing of the layout-
design together with information defining the elec-
tronic function which the integrated circuit is in-
tended to perform but the application may omit such
parts of the copy or drawing that relate to the man-
ner of manufacture of the integrated circuit, provided
that the parts submitted are suficient to allow the
identification of the layout-design;

(e) specify the date of first commercial exploitation of
the layout-design anywhere in the world or indicate
that such exploitation has not commenced; and

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AND Act 2003.

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Cf) provide particulars establishing the right to protec-
tion under section 5.

(4) Where an application does not duly comply with the
requirements of subsection (3), the Registrar shall immediately
notify the applicant of the defects and invite him to correct them
within two months.

(5) Where the defects are corrected within the time limit under
subsection (4), the Registrar shall accord as the filing date the
date of receipt of the application, provided that, at the time of
receipt, the application contained an express or implicit indica-
tion that the registration of a layout-design is requested and
indications allowing the identity of the applicant to be estab-
lished and was accompanied by a copy or drawing of the layout-
design.

(6) Where the requirements of subsection (5) were not com-
plied with at the date of receipt of the application but are com-
plied with within the time limit, the date of receipt of the required
correction shall be deemed to be the filing date of the application.

(7) The Registrar shall confirm the filing date and communi-
cate it to the applicant.

(8) Where the defects are not corrected within the time limit,
the application shall be deemed not to have been filed.

(9) Each application for protection of a layout-design shall be
subject to the payment of the prescribed fee.

(10) Where the fee is not paid, the Registrar shall notifj the
applicant that the application will be deemed not to have been
filed unless payment is made within two months from the date of
the notification and where the application fee is not paid within
that time limit, the application shall be deemed not to have been
fded.

Register, 9. (1) The Registrar shall maintain a register in which he shall
registration and record all matters required by this Act to be recorded.
publication.

(2) Where an application complies with the requirements of
section 8, the Registrar shall register the layout-design in the
Register without examination of the originality of the layout-

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design, the applicant's entitlement to protection or the correct-
ness of the facts stated in the application.

(3) The Register shall contain the number, title, tiling date and,
where indicated in the application under section 8(3)(e), the date
of first commercial exploitation, anywhere in the world, of the
layout-design as well as the name and address of the right-holder
and other prescribed particulars.

(4) Any person may consult the Register and obtain extracts
therefrom, subject to the payment of the prescribed fee.

(5) The registration of a layout-design shall be published in
the prescribed manner.

10. (1) Where the essential content of the application has
been taken from the layout-design of another person without his
consent, that other person may, in writing, request the Registrar
to transfer the application to him.

(2) Where the application has already resulted in a registra-
tion, that person may, within three years from the publication of
the registration, request the Registrar in writing to transfer the
registration to him and to rectify the entry in the Register.

(3) The Registrar shall send forthwith a copy of such a re-
quest to the right holder, and, within the prescribed period and in
the prescribed manner, the right-holder may send to the Registrar
a counter-statement of the grounds on which he relies.

(4) Where the right holder sends a counter-statement, the
Registrar shall furnish a copy thereof to the person requesting
the transfer and, after hearing the parties, if either or both wish to
be heard, and considering the merits of the case, shall decide
whether the application or registration should be transferred and,
where applicable, whether the Register should be rectified.

11. (1) Any change in the ownership of a protected layout-
design shall be in writing in the prescribed form.

(2) Once the layout-design has been registered, the change in
ownership shall, at the request of any interested party, made to
the Registrar, be recorded and published by the Registrar and
such change shall have no effect against third parties until it has
been recorded.

A;\T.tic .. .
AND

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Right to transfer;
rectification of
register.

Changes in
ownership;
contractual
licences.

ANTIGUA 8 ne Integrated Cimb Topography No. 20 of 2003.
AND Act, 2003.

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(3) Any licence contract concerning a layout-design shall,
upon registration of the layout-design, be su8mitted to the Reg-
istrar who shall keep its contents confidential but shallpublish a
reference~thereto and the licence contract shall have no effect
against third parties until such submission has been made.

Cancellation.
12. (1) Any interested person may apply to the Court for the

cancellation of the registration of a layout-design on the grounds
that -

(a) the layout-design is not protectable under sections
3 and4;

(b) the right-holder is not entitled to protection under
section 5; or

(c) where the layout-design has been commercially ex-
ploited, anywhere in the world, before the filing of
the application for registration of the layout-design,
the application was not filed within the time limit
referred to in sections 3(2) and 7(l)(a).

(2) Where the grounds for cancellation are established with
respect only to a part of the layout-design, only the correspond-
ing part of the registration shall be cancelled.

(3) Any cancelled layout-design registration, or part thereof,
shall be regarded as null and void from the date of the com-
mencement ofprotection.

(4) The Registrar of thi: Court shall notify the Registrar of the
decision of the Court or the decision on any appeal therefrom
and the Registrar shall record it and publish a reference thereto
as soon as possible.

Representation. 13. Where an applicant's ordinary residence or principal place
of business is outside Antigua and Barbuda, he shall be repre-
sented by a registered agent resident and practising in Antigua
and Barbuda before the Registrar of the Intellectual Property
Office. The procedure for the registration of an agent shall be
prescribed in the regulations.

Infringement; 14. (1) Infringement shall consist of the performance of any
enforcement of act which is unlawll under section 6.
exclusive right.

(2) On the request of the right-holder, or of his licensee if the
latter has requested the right-holder to institute court proceed-

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ings for a specific relief and the right holder has refused or failed
to do so within a reasonable time, the Court may grant an injunc-
tion to prevent infringement or an imminent infringement, award
damages and grant any other remedy provided for in the general
law.

(3) Proceedings under subsection (2) may be initiated only
after an application for registration of the layout-design has been
filed with t h ~ Registrar.

I
1

15. (1) Any person who, without authorization, knowingly Offences.
performs any act which is unlawful under section 6, shall be
guilty of an offence and is liable on summary conviction to a fine
of ten thousand dollars ($10,000.00) and to imprisonnient for five
years and the Court may also order the seizure, forfeiture and
destruction of the layout-designs, integrated circuits or articles
concerned and of any materials or implements, the predominant
use of which has been in the commission of the offence.

16. (1) Where - Exploitation by
a Government

(a) the public interest, in particular, national security, agency or third
nutrition, health or the development of other vital person.

sectors of the national economy requires the exploi-
tation of a protected layout-design for public non-
commercial use; or

(b) a judicial or adrmnistrative body has determined that
the manner of exploitation of a protected layout-de-
sign, by thexight-holder or his licensee, is anti-com-
petitive, and the Minister is satisfied that the exploi-
tation of the layout-design in accordance with this
section would remedy such practice,

the Minister may decide that, even without the authorization of
the right-holder, a Government agency or a third person desig-
nated by the Minister may exploit the layout-design.

(2) Exploitation of the layout-design shall be -

(a) limited, in scope and duration, to the purpose for
which it was authorized;

(b) predominantly for the supply of the domestic mar-
ket;

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(c) non-exclusive; and

(d) sa jec t to the payment to the right-holder of an ad-
equate remuneration therefor, taking into account
the economic value of the Minister's authorization,
as determined in the Minister's decision and, where
applicable, the need to correct anticompetitive prac-
tices.

(3) Upon request of the right-holder or of the beneficiary of
the authorization, the Minister may, after hearing the parties, if
either or both wish to be heard, vary the terms of the decision
authorizing the exploitation of the layout-design to the extent
that changed circumstances justify such variation.

(4) Upon the request of the right-holder, the Minister shall
terminate the authorization if he is satisfied that the circumstances
which led to his decision have ceased to exist and are unlikely to
recur or that the beneficiary of the authorization has failed to
comply with the terms of the authorization.

(5) Notwithstanding subsection (4), the Minister shall not
terminate an authorization if he is satisfied that the adequate
protection of the legitimate interests of the beneficiary of the
authorization justifies the maintenance of the authorization.

(6 ) Where a third person has been designated by the Minister
in accordance with subsection (I), the authorization may only be
transferred with the enterprise or bm-iness of the beneficiary of
the authorization or with the part of the enterprise or business
within which the layout-design is being exploited.

(7) A request for the Minister's authorization shall be accom-
panied by evidence that the right-holder has received, from the
person seeking the authorization, a request for a contractual li-
cence but that that person has been unable to obtain such a
licence on reasonable commercial terms and conuitions and w i t h
a reasonable time.

(8) Decisions of the Minister under this section may be the
subject of an appeal to the Court.

Exerc~se of 17. (1) The Registrar shall, before exercising any discretion-
dlscretlonary ary power vested in him by this Act adversely to any party to a
powers,
extension of prgeeding before h i q give that party an opportunity to be heard.
tlme

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(2) Where the Registrar is satisfied that the circumstances
justify it, he may, upon receiving a written request therefor, ex-
tend the time for doing any act, other than the time limit set out in
sections 3(2) and 7(l)(a), for filing an application, or taking any
proceeding under this Act, upon notice to the parties concerned
and upon such terms as he may direct and such extension may be
granted notwithstanding the time for doing the act or taking the
proceeding has expired.

18. (1) The Court shall have jurisdiction in cases of dispute Competence of
relating to the application of this Act and in matters which, under C O U ~ ~ ; appeals.
this Act, are to be referred to the Court.

(2) Any decision taken bythe Registrar under this Act, in
particular the registration of a layout-design, may be the subject
of an appeal by any interestedparty to the Court and such ap-
peal shall be filed within two months of the date of the decision.

19. The provisions of any international treaty in respect of Application of
intellectual property to which Antigw and Barbuda is a party
shall apply to matters dealt with by this Act and, in case of treaties.

conflict with provisions of this Act, shall prevail over the latter.

20. The Minister may make Regulations prescribing all mat- Regulat~ons
xfers that are required or permitted by this,Act to be prescribed, or
are necessary or convenient to be prescribed for giving effect to
the purposes of this Act.

Passed the House of Representatives Passed the Senate this 25th day
this 8th &y of September, 2003. of September, 2003.

B. Harris, M. Percival,
Speaker. President.

S. Walker, S. Walker,
Clefk to the House of Representutives: Clerk to the Senate.

~ & d at the ~ovemtnent p=ffice, Antigua and Barbuda
by Walter A, Mipsiah, Government Printer

B~ kuthofity, 2003.
~ ~ 2 . 0 2 [Price $4.701
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