TNAG-1927-FCO40-2744-Future-of-Hong-Kong-Sino-British-Joint-Liaison-Group-sub-gro-1989 — Page 16

Notes on Article 2

32.

Article 2 contains definitions of the principal terms used in the draft

Treaty.

33.

It has already been noted above, in the explanatory notes on the title of the draft Treaty, that the definitional structure adopted for the subject-matter of protection now includes only two terms--"microchip" (item (i)) and "layout-design (topography)" (item (ii)).

34. Ad(i): The term "microchip" is defined in such a way as to mean essentially a layout-design (topography) which has been integrally formed in and/or on a piece of material and which, being capable of performing an electronic function, constitutes a product in itself.

35. Although some delegations during the fourth session of the Committee of Experts favored the limitation of the definition of microchips to those produced by semiconductor technology, such a limitation has not been included in the definition of "microchip," in order not to render the technical scope of the Treaty too narrow, and to allow for future technological developments.

36. It is believed that what is meant by "active element or elements" (examples being transistors. diodes and thyristors) and "passive elements" (examples being capacitors, resistors and inductors) and other technical expressions is sufficiently understood to avoid the need for sub-definitions.

37. Ad(ii): As explained in paragraph 11, above, the dual terminology of "layout-design (topography)" has been retained throughout the draft Treaty in the absence of a clear preference on the part of the delegations during the fourth session of the Committee of Experts for either the term "layout-design" or the term "topography."

38.

The use of the expression "three-dimensional" in this definition is not to be understood as excluding the possibility that the disposition of all the active elements is two-dimensional. Likewise, the disposition of the interconnections or the passive elements could be two-dimensional.

All that

is needed for the purposes of this definition is that the disposition of the active elements, the interconnections and any passive elements is three-dimensional.

39.

Ad(iii): The expression "proprietor," used in previous versions of the draft Treaty, has been replaced in the present text by "holder of the right,' in accordance with the views expressed by many delegations during the fourth session of the Committee of Experts.

40.

The definition is flexible enough to allow any national law to vest the right in the employer if the layout-design of the integrated circuit is the creation of an employee. It covers also the direct or indirect successor in title (assignee, heir, etc.) of the first owner of the rights.

"

41. Ad(iv): The term "protected layout-design (topography)" has been inserted in the draft Treaty in order to clarify that the obligation of Contracting Parties to consider unlawful the acts enumerated in Article 6(1) applies only to layout-designs which satisfy the conditions pursuant to which intellectual property protection is extended under the applicable legislation and the Treaty, and does not encompass, for example, the prohibition of the performance of those acts in respect of layout-designs which are not original or whose term of protection has expired.