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2009 03 23  I P  Semiconductor  Industry
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2009 03 23 I P Semiconductor Industry

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  • 1. Protection of Intellectual Property in the Semiconductor Industry in The Netherlands Wouter Pors, Partner Bird & Bird The Hague 23 March 2009
  • 2. Netherlands – part of European Union
    • One economic region
    • One trade zone
    • 27 countries
    • 500 million people
    • 16.5 million in The Netherlands
    • 1 currency for 16 countries: Euro
  • 3. The Netherlands: gateway to Europe
    • Trade oriented for centuries
    • Main shipping port: Rotterdam
    • Airport hub: Amsterdam
    • Direct flights to many cities
    • Excellent logistics to Europe
    • First language: Dutch
    • Second language: English
  • 4. The Netherlands: corporate hub
    • Many IP holdings for Europe, due to relatively favourable taxation on royalties
    • Many distribution centres for Europe
    • Relatively large number of European head offices
    • Companies in The Netherlands are usually engaged in international trade
    • Good scientific infrastructure through university system
    • Services and high-tech oriented industry
  • 5. Intellectual property law
    • European law
      • European Patent Convention (uniform prosecution)
      • Community Trademark Regulation
      • Community Design Right Regulation
    • National law harmonized at EU level
      • Dutch Semiconductor Topography Act
      • Dutch Copyright Act
      • Benelux Convention on Intellectual Property
        • Trademarks and Design Rights for The Netherlands, Belgium and Luxemburg
      • Dutch Database Act
    • Not harmonized
      • Tort and unfair competition law
  • 6. Patent law – two options
    • Dutch Patent Act
      • Registration system, very fast grant of patents
      • Allows for immediate protection of research results
      • Enables early scientific publication
    • European Patent Convention
      • Thorough examination of applications
      • Centralized application and prosecution system
      • Centralized opposition system
      • Bundle of national patents after grant
    • Applicant is the owner
      • Inventor mentioned in the application, but no special position
      • Inventors consent not needed for prosecution
  • 7. Patent application strategy
    • Research and development in The Netherlands
    • Apply for Dutch national patent
    • Apply for application under the Patent Cooperation Treaty, invoking the Dutch application as priority document within 12 months
    • Enter the regional/national phase within 30 months
      • European patent application
      • Applications in other countries
    • Decide on registration in countries within Europe after grant of the European patent
    • Test the market before major costs are due
  • 8. The patent litigation hotspots
    • United Kingdom
      • (London)
    • Netherlands
      • (The Hague)
    • Germany
      • (D üsseldorf, Munich, Mannheim)
    • Rulings from these courts have authority in other countries
    • European Patent Office
      • Munich, The Hague
  • 9. Patent enforcement in The Netherlands
    • One specialized court in The Hague
    • Experienced judges with feeling for technology
    • Court appreciates that inventions deserve protection
    • Court takes developments in other European countries into account
    • All judgments are published on the internet
    • Proceedings
      • Accelerated full proceedings on the merits: 12 – 14 months
      • Preliminary injunction proceedings: 4 – 8 weeks
      • Ex parte injunction in very urgent cases: 1 -2 days
  • 10. Further protection of technology
    • Semiconductor topography
      • Requires registration
      • Not much used, since technology progresses fast and good alternatives exist
    • Copyright law
      • Ensues from the act of creation
      • No registration required
      • No artistic level required
      • Available for software and for hardware design
      • Limited exception for technically determined designs
  • 11. Copyright for semiconductor design
    • Supreme Court 4-1-1991 Van Dale vs Romme
      • List of 230.000 words including in an extensive Dutch dictionary
      • The selection of words is a decision of the editors with some subjectivity
      • List is a work which has an individual, original character bearing the stamp of its makers, despite limited room for own views
    • Supreme Court 30-05-2008 Endstra tapes
      • If the work is so trivial that no creative efforts of any nature were involved, then no protection
      • But no requirement of intention of creating a copyright protected work or intentionally creative choices
      • Limitation still is very low threshold
  • 12. Copyright for semiconductor design
    • Supreme Court 24-02-2006 Technip
      • Protection assumed of a “ kinetic scheme ”, a set of chemical reaction comparisons that formed part of a computer simulation programme for controlling a production process in the chemical industry
      • The kinetic scheme itself is not a computer programme
      • The comparisons themselves are not protected, but the set of comparisons is copyright protected
      • Kinetic scheme is not a pure and simple enumeration of numbers, but was created using subjective criteria
      • Selection of comparisons is not an automatic mathematical process
      • Subjective element involved, based on the knowledge, insight and experience of the maker
  • 13. Copyright for semiconductor design
    • Conclusion: semiconductor design which is the result of research and development will be copyright protected in The Netherlands
    • This part of copyright law is not yet harmonized through European Union Directives, so criteria for assuming a copyright protected work vary throughout Europe
    • For instance: German law requires a certain level of artistic character, which semiconductors lack
    • The Netherlands offer a high level of copyright protection and thereby of results of research and development
  • 14. Copyright: some specifics
    • Copyright is vested in the company that publishes the work without mentioning the author
      • By making the product available to the public, the manufacturer is assumed to own the copyright
      • No need to identify the actual designers
    • Evidence of existence
      • No registration required
      • However, proof of priority desirable
      • Safe storage of “design freeze” files to prove priority
        • Online “i-Depot” with Benelux Office for Intellectual Property
        • Physical depot on USB-stick with a notary
  • 15. Cooperation in development
    • No formal legal requirements
    • Joint venture may be designed as proprietor
    • Parties may also decide on co-ownership
      • Each owner free to apply invention and copyrights, but licensing requires cooperation
      • Cooperation and co-ownership governed by agreement, as parties may desire
      • Agreement may involve power of attorney to represent co-owner in exploitation and enforcement, including representation in court
      • Arrangement may be varied for instance per region (i.e. one partner exploits in Europe, other partner in Asia)
  • 16. Professional support
    • The Netherlands have an international orientation
    • Legal professionals are used to adopt an international perspective and work in the English language
    • Several options for using a one-stop-shop for Europe
    • In general, law firms and patent attorney’s firms are separate, but there is a trend for integrated firms
  • 17. Characteristics of Dutch IP protection
    • Fast and reliable patent system, both for national and European patents
    • Supplementary protection available
      • Semiconductor topography rights
      • Copyright protection for semiconductor design
    • Good legal system
      • Effective protection
      • Courts appreciate importance of intellectual property
      • Rulings from Dutch courts are seen as having authority in other European jurisdictions (same applies to judgments from United Kingdom and Germany)
  • 18. Thank you!
    • Wouter Pors
    • Bird & Bird The Hague
    • [email_address]
    • www.twobirds.com