A Brief Overview of IC Design Protection
Posted on Monday, August 31, 2009
By Charl Goussard, NAIP Legal ResearchWhat is Integrated Circuit Design?
Simply put, integrated circuit design has to do with the meticulous logic and techniques applied to the design of integrated circuits.
Integrated circuits (IC) are "miniature electronic components built into an electrical network on a monolithic semiconductor substrate by photolithography", which in more layman's terms, essentially means they are dozens or even billions of tiny inter-connecting electrical paths meticulously arranged onto a single piece of material, such as silicon.
In the past few decades the development of IC has arguably been the main driving force behind a majority of advances in technology. We find them in everyday goods, controlling the spin cycles of washing machines, keeping time in digital watches, and crunching whatever processes we are running on computers.
As markets drive toward smaller, faster, better electronics products, new IC chips must be produced to meet these demands. Due to the nature of IC, the majority of progress arises from the new, more effective and efficient designs and arrangements of the circuits. As a result, IC design is one of the most important fields in modern electronics.
The Need for Legal Protection:
Designing an IC chip is not a simple feat. As chips become even smaller, issues such as hot spots, leakage etc., make an effective, power-efficient designs extremely difficult to achieve. Successful designs usually result from the enormous effort of highly qualified experts coupled with huge financial investments.
However, copying each layer of an integrated circuit and preparing "pirated" integrated circuits can be done with relatively little effort.
Taking into account the enormous effort and cost to develop an IC design, the wide industrial applicability, the constant demand for improvement, and the ease at which such designs can be copied, it seems logical that some form of statutory protection should be afforded for the designers or owners of these designs.
But where do we find these rights?
Patent or Copyright?
Provided that an IC Design displays satisfactory inventiveness and meets the required standard of uniqueness, patent protection will always be an option for the protection of the intellectual property rights embodied in an IC Design.
However, the lion's share of IC Designs is considered obvious under the most patent systems given that they typically lack any improvement (inventive step) over their predecessors (prior art).
Here some might argue that IC Designs are sufficiently protected by Copyright laws, since Copyright usually applies to a wide range of creative, intellectual, scientific, or artistic forms (and what is IC Design but a form of technical art?). The United States Constitution expresses the intent of copyright as:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Article I, Section 8, Clause 8 United States Constitution).Unfortunately, neither patents nor copyrights were deemed suitable, and in 1984 the United States passed the Semiconductor Chip Protection Act. Although codified under the same title as Copyrights, the Act is clearly intended to provide IC Designs with sui generis ("of its own kind") rights. It has some aspects of copyright law, some aspects of patent law, and in some ways it is completely different from either.
Legal Protection: Treaties, Laws and Regulations
The United States led the way in recognising the need for a special act to adequately protect IC Designs Rights. The Semiconductor Chip Protection Act enacted 17 U.S.C. §§ 901-914, which provides statutory protection for IC Design Rights in the US. The following extract from the Senate Report on the bill (S.Rep. No. 425, 98th Cong., 2d Sess. (1984) is self-explanatory:
In the semiconductor industry, innovation is indispensable; research breakthroughs are essential to the life and health of the industry. But research and innovation in the design of semiconductor chips are threatened by the inadequacies of existing legal protection against piracy and unauthorized copying. This problem, which is so critical to this essential sector of the American economy, is addressed by the Semiconductor Chip Protection Act of 1984. ...[The bill] would prohibit "chip piracy"--the unauthorized copying and distribution of semiconductor chip products copied from the original creators of such works.According to the Act, IC Design rights exist when they are created, just like Copyrights, but unlike patents (which can only confer rights after application, examination and issuance). However, the exclusive rights afforded to the owners of IC Designs are more restricted than those afforded to both copyright and patent holders. Modification (derivative works), for example, is not an exclusive right for owners of IC Designs. Furthermore, the exclusive right granted to a patentee to "use" an invention, cannot be used to exclude an independently produced identical IC Design. In addition, reproduction for reverse engineering of an IC Design is specifically permitted by most laws.
Japan (1985) and the European Community (EC) countries (1987) soon followed and endorsed their own, similar statutes/directives recognizing and protecting IC Designs (also referred to as the "topography of semiconductor chips")
In 1989, a Diplomatic Conference was held in Washington, D.C., at which the Treaty on Intellectual Property in Respect of Integrated Circuits (IPIC Treaty) was adopted internationally. This treaty has been partially incorporated into the TRIPS agreement of the World Trade Organisation (WTO).
IC Design Protection in Major Countries
The United States, as mentioned above, were the first to protect IC-Design rights through the United States Code (17U.S.C. § 901(a) (2)). Dubbed "mask works", the Code defines IC Designs/Mask Works as:
a series of related images, however fixed or encoded, having or representing the predetermined, three-dimensional pattern of metallic, insulating, or semiconductor material present or removed from the layers of a semiconductor chip product, and in which the relation of the images to one another is such that each image has the pattern of the surface of one form of the semiconductor chip product.The top IC markets all have passed their own Acts or Regulations that include variations of this definition. Below is a comparison of the IC Design Protection extended by the major IP offices in the world, as well as that afforded by the Taiwan IP office (TIPO).
(Right click and choose "Save As" to download a pdf of this chart)Similar protection can also be found in The United Kingdom (Part III of the Copyright Designs and Patents Act – 1988, as modified by The Design Right (Semiconductor Topographies) Regulations - 1989), Australia (Circuits Layouts Act of 1989), Canada (Integrated Circuit Topography Act of 1990), Hong Kong (Lay-out Design (Topography) of Integrated Circuits Ordinance of 1994), and India (Semiconductor Integrated Circuits Layout Design Act of 2000). In Taiwan, IC Design Rights are protected by the Integrated Circuit Layout Protection Act of 1995.
Conclusion
Having had a brief overview of IC Design rights, it should now be clear that these highly lucrative rights are recognized and protected internationally as sui generis rights, under the umbrella of Intellectual Property Rights. With an exclusive time-frame of 10 years from its registration or start of commercial exploitation, these rights should be an impetus to develop, improve and invest in the economics of electronics – securing a brighter, lighter and faster future!
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