2009 03 23 i p semiconductor industry
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Protection of Intellectual Property in the Semiconductor Industry in The Netherlands
Wouter Pors, Partner
Bird & Bird The Hague
23 March 2009
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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
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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
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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
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Intellectual property law
European lawEuropean Patent Convention (uniform prosecution)
Community Trademark Regulation
Community Design Right Regulation
National law harmonized at EU levelDutch Semiconductor Topography Act
Dutch Copyright Act
Benelux Convention on Intellectual PropertyTrademarks and Design Rights for The Netherlands, Belgium and Luxemburg
Dutch Database Act
Not harmonizedTort and unfair competition law
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Patent law – two options
Dutch Patent ActRegistration system, very fast grant of patentsAllows for immediate protection of research resultsEnables early scientific publication
European Patent ConventionThorough examination of applicationsCentralized application and prosecution systemCentralized opposition systemBundle of national patents after grant
Applicant is the ownerInventor mentioned in the application, but no special positionInventors consent not needed for prosecution
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Patent application strategy
Research and development in The NetherlandsApply for Dutch national patentApply for application under the Patent Cooperation Treaty, invoking the Dutch application as priority document within 12 monthsEnter the regional/national phase within 30 months
European patent applicationApplications in other countries
Decide on registration in countries within Europe after grant of the European patentTest the market before major costs are due
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The patent litigation hotspots
United Kingdom(London)
Netherlands(The Hague)
Germany(Düsseldorf, Munich,
Mannheim)
Rulings from these courts have authority in other countries
European Patent Office Munich, The Hague
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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
ProceedingsAccelerated full proceedings on the merits: 12 – 14 months
Preliminary injunction proceedings: 4 – 8 weeks
Ex parte injunction in very urgent cases: 1 -2 days
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Further protection of technology
Semiconductor topographyRequires registration
Not much used, since technology progresses fast and good alternatives exist
Copyright lawEnsues 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
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Copyright for semiconductor design
Supreme Court 4-1-1991 Van Dale vs RommeList 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 tapesIf 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
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Copyright for semiconductor design
Supreme Court 24-02-2006 TechnipProtection 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 industryThe kinetic scheme itself is not a computer programmeThe comparisons themselves are not protected, but the set of comparisons is copyright protectedKinetic scheme is not a pure and simple enumeration of numbers, but was created using subjective criteriaSelection of comparisons is not an automatic mathematical processSubjective element involved, based on the knowledge, insight and experience of the maker
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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
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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 existenceNo registration required
However, proof of priority desirable
Safe storage of “design freeze” files to prove priorityOnline “i-Depot” with Benelux Office for Intellectual Property
Physical depot on USB-stick with a notary
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Cooperation in development
No formal legal requirements
Joint venture may be designed as proprietor
Parties may also decide on co-ownershipEach 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)
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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
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Characteristics of Dutch IP protection
Fast and reliable patent system, both for national and European patents
Supplementary protection availableSemiconductor topography rights
Copyright protection for semiconductor design
Good legal systemEffective 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)
