Mexico: Chip Protection In Mexico

Last Updated: 3 February 1998

Most Read Contributor in Mexico, November 2018
In compliance with the provisions of the GATT/TRIPS agreement and NAFTA, the Mexican Industrial Property Law has been amended by means of a decree published in the Official Gazette of December 26, 1997, in order to incorporate a full new chapter relating to the protection and enforcement of layout designs for integrated circuits or chip topographies, said amendments having entered into full force and effect as of January 1st., 1998.

A brief summary of the main provisions of said new chapter are described in what follows:

APPLICATION FOR REGISTRATION:

1) A registration application must be filed with the Mexican Institute of Industrial Property (IMPI), including:
a) A declaration under oath that will specify the date and place of the first ordinary commercial exploitation anywhere in the world, or that will specify that there has been no exploitation.
b) A graphic or photographic reproduction of the layout.
c) The indication of the electronic function carried out by the integrated circuit to which the layout has been incorporated.

REGISTRABILITY:

1) To be registrable, the layout must be an original layout, regardless of the fact that it be incorporated or not to an integrated circuit; it must not have been commercially exploited anywhere in the world. However, it will still be registrable even if it has been ordinarily commercially exploited in Mexico or abroad, provided that the registration application is filed within a term or two years as of the date of the first ordinary commercial exploitation in any part of the world.

2) A layout consisting of a combination of elements or interconnections which are customary or commonplace among the creators of topographies or layout designs or the manufacturers of integrated circuits at the time of its creation, will only be registrable if the combination, jointly considered, may be regarded as original.

3) For the above purpose, an original layout or topography for integrated circuits must be one which is the result of the intellectual effort of its creator, and not of a usual or common nature among the creators of layout designs or topographies or the manufacturers of integrated circuits, at the time of its creation.

DURATION OF THE REGISTRATION AND MARKING REQUIREMENTS:

1) The non renewable duration of the registration of a layout or topography will be of ten years counted from the filing date of the application and will be subject to payment of annuities.

2) The registered layout designs or topographies or the integrated circuits to which they are incorporated must show the letters M or T, either within a circle or within a frame of any other shape, accompanied by the name of the registrant, either in a complete or in an abbreviated manner by which he is generally known.

RIGHTS GRANTED BY THE REGISTRATION:

1) The registration of a layout or topography for an integrated circuit will confer to registrant the right to prevent other persons, without its authorization, from:
a) Reproducing the protected layout or topography or any of its parts that is considered as original in itself, by incorporation in an integrated circuit or in any other manner.
b) Importing, selling or distributing in any manner and for commercial purposes:
i) The protected layout or topography.
ii) An integrated circuit in which the protected layout is incorporated.
iii) Any good incorporating an integrated circuit which in turn incorporates an illegally reproduced protected layout or topography.

2) The rights conferred by a registration will not produce any effect against any third party that:
a) Without the authorization of registrant, but with private purposes and only with the objective of evaluation, analysis, research or teaching, reproduces a protected layout.
b) Creates a layout which complies with the requirement of originality, based on the evaluation or the analysis of a protected layout under the provision of the above paragraph.

The creator of the second layout will be able to carry out any one of the actions described in paragraph (1) above with respect to the layout created by him, without the authorization of the registrant of the first protected layout.
c) In an independent manner and prior to the publication of the registration in the official Gazette, has created an original layout identical with the protected layout. The burden of the proof of originality will be on the independent creator of the second layout.
d) Carries out any one of the actions described in paragraph (1b) above without the authorization of registrant, after the goods have been legally introduced in the market in Mexico or in any other part of the world by the registrant or with his consent, in connection with:
i) A protected layout or topography.
ii) An integrated circuit in which the protected layout is incorporated.
iii) Any good incorporating an integrated circuit which in turn incorporates an illegally reproduced protected layout or topography.
e) Without the authorization of registrant, sells or distributes in any manner an integrated circuit that incorporates an illegally reproduced protected layout, provided that the person carrying out or ordering such actions does not know and has no reasonable motives to know, when acquiring such integrated circuit, that the same incorporates an illegally reproduced protected layout.

As of the moment in which the third party acting in good faith receives sufficient advise that the protected layout has been illegally reproduced, said party will be obligated to pay a reasonable royalty (fixed by the IMPI) that would correspond to that payable under a freely negotiated license, until the inventory is depleted or the purchase orders placed before the notification have been satisfied

The content of this article is intended only to provide general guidelines related to this particular matter. For your specific circumstances, full specialist advise is recommended.

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