Law No 11 of May 3 1988 on the Legal Protection of Topographies of Semiconductor Products and Patents



		Law No. 11 of May 3, 1988,



		on the Legal Protection of Topographies of Semiconductor Products



		Definitions



		1. For the purposes of this Law:



		(1) a “semiconductor product” shall mean the final or an intermediate form of a product:



		(a) consisting of a body of material which includes a layer of semiconducting material, and



		(b) having one or more other layers composed of conducting, insulating or semiconducting material, the layers being arranged in accordance with a predetermined three-dimensional pattern, and



		(c) intended to perform, exclusively or together with other functions, an electronic function;



		(2) the “topography” of a semiconductor product shall mean a series of related images, however fixed or encoded:



		(a) representing the three-dimensional pattern of the layers of which a semiconductor product is composed, and



		(b) in which series each image has the pattern or part of the pattern of a surface of the semiconductor product at any stage of its manufacture;



		(3) “commercial exploitation” means the sale, rental, leasing or any other method of commercial distribution, or an offer for these purposes.



		For the purposes of the foregoing definition, “commercial exploitation” shall not include exploitation under conditions of confidentiality to the extent that no further distribution to third parties occurs. Nevertheless, such exploitation shall be included as takes place under conditions of confidentiality where those conditions are required for security reasons connected with military applications.



		Requirements for Protection



		2.—



		(1) The topographies of semiconductor products shall be protected by the grant of exclusive rights in accordance with the provisions of this Law.



		(2) The topography of a semiconductor product shall be protected insofar as it is the result of its creator’s own intellectual effort and is not commonplace in the semiconductor industry. Where the topography of a semiconductor product consists of elements that are commonplace in the semiconductor industry, it shall be protected only to the extent that the combination of such elements, taken as a whole, fulfills the above-mentioned conditions.



		Right to Protection



		3.—



		(1) Subject to the provisions of the following paragraphs, the right to protection shall apply in favor of persons who are the creators of the topographies of semiconductor products.



		(2)

(a) The right to protection for topographies of semiconductor products created by an employee during the validity of his employment contract, or in the course of employment relations with the employer, shall be governed by the provisions of Title IV, Employee Inventions, of Law No. 11/1986 of March 20, on Patents..^{(b)
The right to the protection of topographies of semiconductor
products created under a contract other than a contract of
employment shall apply in favor of the party to the contract who
commissioned the topography, unless the contract provides to the
contrary.

(3)

(a)
The following shall enjoy the protection of this
Law:

The natural persons referred
to in paragraphs (1) and (2) who are nationals of a
Member State of the European Economic Community or who have their
habitual residence on the territory of such a Member State, and also
legal entities referred to in paragraph (2) that have a real
and effective industrial or commercial establishment on the
territory of a Member State of the European Economic
Community.

(b)
The protection of this Law shall also be enjoyed by natural
persons or legal entities that meet the conditions laid down in

(4)
The right to protection shall also apply in favor of the
successors in title of the persons mentioned in the foregoing
paragraphs.

Registration

4.—

(1)
The exclusive rights conferred in conformity with of
for the in and relation to shall into a is be with
product unless not where form application thereof
Section 2 come existence topography semiconductor an
filed Registry Industrial Property. Regulations enacted
determine conditions registration, processing settlement also,
appropriate, publication registration
decision.<>

The application for
registration may also be filed with the Provincial
Directorates of the Ministry of Industry and Energy, except
where jurisdiction in industrial property matters belongs to
the Autonomous Community, whose bodies shall in that case be
competent to receive filings. Under such circumstances, the
administrative department that has received the application
shall make a record of the day, hour and minute of filing and
shall convey that record to the Registry of Industrial
Property.

Both the application
for registration and the other documents that are to be filed
with the Registry of Industrial Property shall be drawn up in
Spanish. In those Autonomous Communities that have another
official language in addition, the said documents may be drawn
up in that other language, but shall be accompanied by the
corresponding Spanish translation, which shall be considered
authentic in the case of discrepancies between the
two.

The application may be
filed prior to the start of commercial exploitation or within
a maximum period of two years from the starting date of such
exploitation. Material identifying or exemplifying the
topography or any combination thereof, and also a statement in
a public document as to the date of first commercial
exploitation of the topography where it precedes the date of
the application for registration, shall be filed with the
application for registration.

(2)
The material deposited in conformity with the foregoing
paragraph shall not be available to the public where it is a
trade secret. This provision shall be without prejudice to the
disclosure of such material pursuant to an order of a court or
other competent authority to persons involved in litigation
concerning the validity or infringement of the exclusive
rights referred to in Section 2.<>

(3)
Any transfer of exclusive rights in the topographies of
semiconductor products shall not be binding on bona
fide third parties unless they have been registered with
the Registry of Industrial Property.

(4)
Persons who have the right to protection for
topographies of semiconductor products in accordance with the
provisions of this Law and who can prove that another person
has applied for and obtained the registration of a topography
without their authorization may apply to the courts to claim
ownership of the topography, without prejudice to whatever
other rights or actions may be available to them. Actions
claiming ownership may only be brought within a period of two
years following the date on which the registration of the
topography of the semiconductor product was
published.

Content of Exclusive Rights

5.—

(1)
The exclusive rights referred to in any the
or following to shall include right authorize prohibit acts:<
Section 2>

(a)
reproduction of a topography insofar as it is
protected under Section 2(2), with the exception of
reproduction for private and non-profit-making
purposes;

(b)
commercial exploitation or importation for that
purpose of a topography or of a semiconductor product
manufactured by using the topography.

(2)
The exclusive rights referred to in
paragraph (1) shall not apply to reproduction for the
purpose of analyzing, evaluating or teaching the concepts,
processes, systems or techniques embodied in the topography or
the topography itself.

(3)
The exclusive rights referred to in
paragraph (1) shall not extend to any such act in
relation to a topography meeting the requirements of
Section 2(2) and created on the basis of an analysis
and evaluation of another topography, carried out in
conformity with paragraph (2) of this
Section.

(4)
The exclusive rights to authorize or prohibit the acts
specified in

(5)
A person who, when he acquires a semiconductor
product, does not know, or has no reasonable grounds to
believe, that the product is protected by an exclusive
right conferred in accordance with the provisions of
this Law may not be prevented from commercially
exploiting that product.

However, for
acts committed after that person knows, or has
reasonable grounds to believe, that the semiconductor
product is so protected, the owner of the rights may
apply to the courts to seek payment of adequate
remuneration.

(6)
The provisions of the foregoing paragraph shall
apply also to the successors in title of the person
referred to in the first sentence of that
paragraph.

Compulsory Licenses

6. The
exclusive rights referred to in of the such may so be
Section 2 subject compulsory licenses when
public interest dictates. Under
circumstances,>Sections 90, 101 and

Duration of Protection

7.—

(1)
The exclusive rights referred to in
the following on shall into two
Section 2 come existence earlier
dates:<>

(a) the date when
the topography is first commercially exploited
anywhere in the world;

(b) the date when
an application for registration has been filed in
due form.

(2)
The exclusive rights shall come to an
end on expiry of 10 years from the earlier of
the following two dates:

(a) the end of
the calendar year in which the topography was
first commercially exploited anywhere in the
world;

(b) the end of
the calendar year in which the application for
registration was filed in due form.

However,
any registration of a topography that has not been
commercially exploited anywhere in the world
within a period of 15 years from its first
fixation or encoding shall be without
effect.

Actions for Violation of Exclusive
Rights

8.—

(1)
The owner of a topography by virtue
of this Law may institute before the courts of
ordinary jurisdiction the civil actions and
measures provided for in

(2) Any person who,
being entitled to protection under by of for
under the or and first fixation has imported
into a another that can exclusive person
existence topography Section 3, prove
fraudulently reproduced commercially exploited
purpose created him during period between its
encoding coming rights>paragraph (1) of
Section 7, may institute before the courts
the appropriate action for unfair
competition.

Subject Matter
Protected

9. The protection granted by any the or in to shall other only
Section 2 topography semiconductor
topographies products apply itself, exclusion
concept, process, system, technique encoded
information embodied
topography.<>

Notice of Protected
Rights

10. Semiconductor products
manufactured on the basis of topographies
protected under the provisions of this Law may
carry a visible indication, consisting of a
circled capital T, to give notice of the
existence of that protection.

Continued Application of Other Legal
Provisions

11. The provisions of this Law
shall be without prejudice to legal provisions
concerning patent and utility model
rights.

ADDITIONAL PROVISIONS

1. A fee, to which the following
rules shall apply, is hereby created for
services rendered by the Registry of Industrial
Property in connection with the legal protection
of the topographies of semiconductor
products:

(1) Regulatory
provisions. The fee shall be governed by the
provisions of this Law and failing that, by the
General Tax Law, No. 230 of
December 28, 1963, by the Law on Taxes
and Parafiscal Levies of
December 26, 1958, and by Law
No. 17 of May 2, 1975, Creating
the Industrial Property Registry as an
Autonomous Body.

(2) Acts subject to
payment. The fee shall be payable
for:

(a) application
for registration of the topographies of
semiconductor products;

(b) deposit of
material identifying or exemplifying the
topography or any combination
thereof;

(c)
registration of transfers of exclusive
rights in the topographies of semiconductor
products.

(3) Persons liable.
Applicants for the registration of topographies
or for the deposit of material or for the
registration of transfers shall be liable to
payment of the fee.

(4) Amounts. The fees
shall be payable according to the following
tariff:

(i)
fee for application for registration:
6,050 pesetas;

(ii)
fee for deposit of material:
4,000 pesetas;

(iii)
fee for registration of transfers, for
each registration:
1,200 pesetas.

(5) Commencement of
liability. The obligation to contribute shall
come into existence at the time of the
application for registration or for recording of
the transfer or at the time of the deposit of
the material.

(6) Allocation. The
fee shall accrue to the Registry of Industrial
Property, the amount deriving from its
collection being incorporated in budgetary
income.

(7) Management.
Subject to the supervision and direction of the
Ministry of Economy and Finance, the management
of the fee shall be entrusted to the Registry of
Industrial Property, which shall have the
authority to assign the funds as it sees
fit.

(8) Amendment. The
General Budget Laws of the State may amend the
amounts specified in the tariff to adapt them to
variations occurring in the costs of services
remunerated according to economic and social
conditions.

2. The Law on Administrative
Procedure shall apply subsidiarily to any
administrative acts governed by this Law that
may be resorted to in administrative litigation
conforming to the provisions of the Law on
Jurisdiction in Administrative Litigation of
December 27, 1956.

FINAL PROVISIONS

1. The Government is authorized to
institute such measures and enact such
provisions as are necessary for the development
and implementation of the provisions of this
Law.

2. The Government is authorized to
amend the definitions in

3. The Government is authorized to
amend Section 3(3) with a view to
broadening the right to protection to include
persons originating in other countries or
territories that do not otherwise enjoy
protection when such a measure is laid down by
the bodies of the European
Communities.

The
Government may likewise extend protection to
persons who are not covered by the foregoing
paragraph by concluding the appropriate
agreement with their State of origin in
accordance with the procedure provided for in
Article 3(6) to (8) of Directive
No. 87/54/EEC of
December 16, 1986.

4. This Law shall enter into force
four months after its publication in the
Official Bulletin of the State [Boletin
Oficial del Estado].}

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Law No 11 of May 3 1988 on the Legal Protection of Topographies of Semiconductor Products and Patents