522
6 Reverse Engineering of Microcircuits
any offender can copy all the layers of a protected IC, using both designs and works
requiring no designs. At the same time, the potential offender can easily avoid legal
responsibility by claiming that inclusion of unprotected topologies created without
using the design makes the copied IC principally different from the protected IC.
Although, as far as we know, such disputes are yet to happen.
In addition to the problems associated with the protection object volume, the
very essence of the item protected by the Act is often considered unequivocal. Such
ambiguity forced other organizations, such as the European Community, to use a
completely different language to describe the protected subject. Others continued to
argue that, despite the ambiguity of the language, this law still provided protection
for the design of specific microcircuits.
Some experts rely on the legislative history (legal precedent), supporting the thesis
that the law still provides protection for the design of specific microcircuits. At the
hearing of the Act before the meeting of the Subcommittee on Patents, Copyright
and Trademarks in the Senate in 1983, Senator F. Thomas Dunlop Jr. noted that
the draft of the Act applied not only to an industrial design, but also to a specific
electrical circuit of a microcircuit. However, this issue is more complicated than it
may seem from the point of view of legislative history. Sections 901(a)(1) and 902 of
the Act clearly state that a microcircuit containing an industrial design is the subject of
protection. Regardless of the legislative history (precedent), legal legislative language
clearly indicates that the Act ensures protection of microcircuits containing industrial
designs. The legislative history does not explain whether the topology or scheme of
an electrical microcircuit containing no industrial design is protected by the law.
A number of experts also state that the words “captured or encoded” in Section 901,
considered together with the legislative history, indicate that the US law actually
protects semiconductor products containing microcircuits and topologies of integrated circuits regardless of whether or not an industrial design is used in them.
Nevertheless, the legislative history backing this argument states that an industrial
design can be captured in a number of designs or encoded in another tangible form, for
instance, as a digital image of the industrial design on magnetic film. Subsequently,
the image of the industrial design can be recorded on film (any image carrying media)
to be later turned into a design. This does not mean that any electrical circuit of the
integrated microcircuit scheme stored on film (data carrying media) is protected
according to the law, even if this circuit was created without using a design. As
stated above, legal language of the Act describes protection of an industrial design:
it is hard for a lawyer or a judge to imagine that this definition may include the
topology of an integrated circuit created without using a design. The words “captured or encrypted” cannot lead to other conclusions, since they relate to capture of
an industrial design, not an integrated circuit topology. The legislative language in
combination with a more literal interpretation of the legislative intent indicates that
the act protects an industrial design if such design is captured in a semiconductor
product containing a microcircuit (Sections 901(a)(1) and 902) but does not provide
protection of the semiconductor microcircuit itself.
6 Reverse Engineering of Microcircuits
any offender can copy all the layers of a protected IC, using both designs and works
requiring no designs. At the same time, the potential offender can easily avoid legal
responsibility by claiming that inclusion of unprotected topologies created without
using the design makes the copied IC principally different from the protected IC.
Although, as far as we know, such disputes are yet to happen.
In addition to the problems associated with the protection object volume, the
very essence of the item protected by the Act is often considered unequivocal. Such
ambiguity forced other organizations, such as the European Community, to use a
completely different language to describe the protected subject. Others continued to
argue that, despite the ambiguity of the language, this law still provided protection
for the design of specific microcircuits.
Some experts rely on the legislative history (legal precedent), supporting the thesis
that the law still provides protection for the design of specific microcircuits. At the
hearing of the Act before the meeting of the Subcommittee on Patents, Copyright
and Trademarks in the Senate in 1983, Senator F. Thomas Dunlop Jr. noted that
the draft of the Act applied not only to an industrial design, but also to a specific
electrical circuit of a microcircuit. However, this issue is more complicated than it
may seem from the point of view of legislative history. Sections 901(a)(1) and 902 of
the Act clearly state that a microcircuit containing an industrial design is the subject of
protection. Regardless of the legislative history (precedent), legal legislative language
clearly indicates that the Act ensures protection of microcircuits containing industrial
designs. The legislative history does not explain whether the topology or scheme of
an electrical microcircuit containing no industrial design is protected by the law.
A number of experts also state that the words “captured or encoded” in Section 901,
considered together with the legislative history, indicate that the US law actually
protects semiconductor products containing microcircuits and topologies of integrated circuits regardless of whether or not an industrial design is used in them.
Nevertheless, the legislative history backing this argument states that an industrial
design can be captured in a number of designs or encoded in another tangible form, for
instance, as a digital image of the industrial design on magnetic film. Subsequently,
the image of the industrial design can be recorded on film (any image carrying media)
to be later turned into a design. This does not mean that any electrical circuit of the
integrated microcircuit scheme stored on film (data carrying media) is protected
according to the law, even if this circuit was created without using a design. As
stated above, legal language of the Act describes protection of an industrial design:
it is hard for a lawyer or a judge to imagine that this definition may include the
topology of an integrated circuit created without using a design. The words “captured or encrypted” cannot lead to other conclusions, since they relate to capture of
an industrial design, not an integrated circuit topology. The legislative language in
combination with a more literal interpretation of the legislative intent indicates that
the act protects an industrial design if such design is captured in a semiconductor
product containing a microcircuit (Sections 901(a)(1) and 902) but does not provide
protection of the semiconductor microcircuit itself.