Integrated circuit design protection

What qualifies for layout design protection

To qualify for protection, a layout design must meet the definition of layout design or integrated circuit under the Act to be original.

Layout design is defined under section 2 of the Act as:

• "The three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections, of an integrated circuit; and includes such a three-dimensional disposition prepared for an integrated circuit intended for manufacture".

Integrated circuit is defined as meaning:

• "A circuit, in its final or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in or on a piece of material and that is intended to perform an electronic function".

Although layout designs may also be protected by patents that are granted under the Patents Act 2013, layout designs are explicitly excluded from protection under the Copyright Act 1994.

Rights conferred by a layout design right

The owner of a layout design right has the exclusive right to:

• copy the layout design, directly or indirectly, in a material form
• make an integrated circuit in accordance with the layout design, or a copy of the layout design
• commercially exploit (ie sell, offer for sale, hire or import for the purposes of sale of hire) the layout design in New Zealand.

How long layout design intellectual property protection lasts

The owner of a layout design protection gets 10 years of protection from the date when the layout design was first commercially exploited, where this exploitation occurred within the 5 years after the layout design was made.

In other cases, the owner receives protection for 15 years from the date the layout design was made.

How to protect your layout design

Registration of layout designs is not required and there is no formal system for the registration of layout designs in New Zealand.

Layout design protection arises automatically when the layout design is:

• first commercially exploited in an eligible country, or
• first made by a resident of an eligible country.

Eligible countries are those:

• where both New Zealand and the other country are party to an international agreement or arrangement for the protection of layout designs, or
• where reciprocal protection for layout designs is available in both countries.

International layout design law

In 1989, the Treaty on Intellectual Property in respect of Integrated Circuits was signed in Washington DC. New Zealand is not a party to this treaty.

The Washington Treaty was, however, incorporated into Article 35 of the Agreement on the Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and as a member of the World Trade Organisation (WTO), New Zealand is a party to the TRIPS Agreement.