It’s a very common question that is referred to us all the time. Most people are not aware of intellectual property rights. On top of it, when it comes to circuits and layouts, things become even more confusing if you are a novice.
Questions like, “Can you patent a circuit?” “Can you copyright a circuit?” “Can you patent a layout?” “Can you copyright a layout?” keep coming up to us in one way or the other.
We have dealt with what kind of protection is given to circuits in this article in detail. We have also touched upon the protection given to PCBs and the layout-designs of ICs.
A layout is a creation of the mind and, therefore, logically should be given protection under Intellectual Property Rights (IPRs).
Since we are dealing with layouts in this article, let’s address whether you can protect layouts under patent or copyright.
You can not patent the layouts of integrated circuits in India. Copyright is also not an effective way to protect them. The layouts of an integrated circuit are protected under the Semiconductor Integrated Circuits Layout Design (SICLD) Act 2000 and the Semiconductor Integrated Circuits Layout-Design (SICLD) Rules 2001 in India.
You may have many questions, like where layouts are registered in India, why would the government create a separate form of IPR for IC layouts, whether there is any international treaty or agreement on this, what are parallel provisions in other countries, and what is “mask work,” etc. Let’s deal with these queries next sections.
Can You Patent the Layout of the Integrated Circuit, If Not Then What?
The short answer to this question is that you can’t patent the layout or topography of an integrated circuit. A separate mechanism has been created for the protection of IC layout-designs.
The creation of an original layout-design for an integrated circuit requires huge capital investment. However, under a sui generis IPR system, protection can be availed for a fraction of the creation cost.
To understand, the protection mechanism in India, we’ll have to reference the SICLD Act 2000 and SICLD Rules 2001.
Let’s first see some definitions from the SICLD Act and Rules.
What is a ‘semiconductor integrated circuit’?
As per Section 2(1)(r) of the SICLD Act, 2000, “semiconductor integrated circuit” means a product having transistors and other circuitry elements which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function;
What is layout-design?
As per Section 2(1)(h) of the SICLD Act, 2000, ‘layout-design’ means a layout of transistors and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit.
What is the term for layout design registration in India?
As per Section 15 of the SICLD Act 2000, the registration of a layout-design is done for a period of ten years. This period is counted from the date of filing an application for registration or from the date of first commercial exploitation anywhere in India or in any country, whichever is earlier.
Legal protection for the duration of ten years is said to be sufficient in the fast-changing world of IC technologies.
What are the criteria for the registration of the layout-design of integrated circuits?
The criteria for the registration of layout-design of integrated circuits have been laid out in Section 7 of the SICLD Act, 2000.
Section 7(1) says what shall not be registered as a layout-design.
So, a layout design-
(a) which is not original; or
(b) which has been commercially exploited anywhere in India or in a convention country; or
(c) which is not inherently distinctive; or
(d) which is not inherently capable of being distinguishable from any other registered layout-design,
shall not be registered as a layout-design.
This way we can conclude something that is original, distinctive, distinguishable from any other layout-design, and has not been commercially exploited in India or in a convention country can be registered as layout-design.
Here, the question in your mind may arise:
What is an original layout-design?
We get this answer in Section 7(2) of the SICLD Act. It says:
A layout-design shall be considered to be original if it is the result of its creator’s own intellectual efforts and is not commonly known to the creators of layout-designs and manufacturers of semiconductor integrated circuits at the time of its creation:
Provided that a layout-design consisting of such combination of elements and interconnections that are commonly known among creators of layout-designs and manufacturers of semiconductor integrated circuits shall be considered as original if such combination taken as a whole is the result of its creator’s own intellectual efforts.
Registry: where the layout-designs of integrated circuits are registered
The office where you can file applications for registration of layout-designs is known as the Semiconductor Integrated Circuits Layout-Design Registry (SICLDR).
Unlike the Indian Patent Office, which has four offices at four locations dividing India into four jurisdictions, the SICLD registry’s only office at Dwarka, Delhi, covers the whole of India under its jurisdiction.
The role of SICLDR is to accept applications, examine them based on the provisions of the SICLD Act 2000 and SICLD Rules 2001, and issue registration certificates to the original layout-designs of the semiconductor integrated circuits.
The office of registry, SICLDR is situated in the same location as the Indian Patent Office, Delhi.
Earlier the administration of SICLD Act, 2000 along with Registry came under the Department of Electronics and Information Technology, DeitY.
Later, after the release of the National IPR Policy, 2016, as one of its objectives, the administration of SICLD Act and the Registry was transferred to the Department of Promotion of Industry and Internal Trade, DPIIT.
What are the registration process and timeline for layout-design registration?
We have created a step-by-step procedural infographic for you to take a quick look at. This infographic has all of the steps that occur in the registration of the layout-design of semiconductor integrated circuits in India.
First Layout-Design Registration Application
Each month the Journal is published with nil entries as no applications are received in most of the months. In fact, the first application received was from BEL, a state-owned company, in October 2014, almost a decade after the Registry was established.
It was an application for the registration of 8 Port Microcontroller (BE 80501) by Bharat Electronics Ltd, Jalahalli, Bangalore.
The opposition period which is 3 months ended in January 2015. Eventually, the application was registered and granted a certificate on January 20, 2015.
Another layout-design registered was from ISRO for 50-60 GHz Sub Harmonic IQ Mixer. It was issued a certificate on May 24, 2016.
To get an idea, how does a layout-design for registration looks like, we have produced the published images which were filed for the application of BE 80501 from BEL in Registry Journal.
The Registration Activity is not picking up
Despite there being a law and infrastructure in place, the registration of layout-designs has not really picked up. It is up to policymakers to make sense of the applicants’ lack of zeal in registering their layout-designs.
At the time of writing this article, only two layout-designs had been registered. Maybe creators don’t want to expose their designs to the public at all. It may also be possible that the mechanism they have in place to safeguard their new layout-designs works well for them.
International Framework On Layout-Designs (Topography) of Semiconductor Integrated Circuits
The notable international framework with respect to the topographies of the integrated circuit is a Treaty adopted in 1989 on Intellectual Property in Respect of Integrated Circuits, called as Washington Treaty or IPIC.
The Washington treaty has not yet entered into effect as such; however, various provisions of it have been included in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).
That is why you will find various aspects of the protection of layout-designs in various countries that are similar in nature. For example, the definitions of “integrated circuit” and “layout-design (topography)”, the criteria for protection, exclusive rights and their limitations, exploitation, disclosure, and registration.
Apart from the Washington Treaty’s provisions that were incorporated in the TRIPS Agreement, some additional provisions on scope and term of protection were introduced in the TRIPS Agreement.
You should know that these international legal frameworks leave room open for the member states as to what kind of legal protection they want to confer on the layout-designs of the integrated circuits.
In line with these international frameworks, in most countries, a special law (sui generis law) on layout-designs (topography) of integrated circuits exists. For example, the SICLD Act 2000 and SICLD Rules 2001 in India
Note: Sui generis law is the law created to protect specific rights when other general laws become inadequate or inappropriate.
Due to the freedom granted by the TRIPS Agreement, you may not necessarily find sui generis law for the protection of layout-designs or mask works in every country.
In fact, you may find that layout-designs in many countries are covered by the law on copyright, patents, utility models, industrial designs, unfair competition, or any other law, or a combination of any of these laws and not by a sui generis law.
For e.g., in USA, mask works are protected by the Semiconductor Chip Protection Act of 1984. The term of protection for mask-works in USA is 10 years which is similar to that of India.
1. In many countries, the layout-design of integrated circuits is referred to as “mask works."
2. IC layout-design is also called IC mask design. That is so because IC masks created by layout designers are used to manufacture ICs.
We have created a table below that shows various laws in various countries for the protection of mask-works or layout-designs of integrated circuits.
|Country||Law on Mask-Works OR Layout-Design|
|USA||Semiconductor Chip Protection Act of 1984|
|Australia||Circuit Layouts Act 1989|
|Canada||Integrated Circuit Topography Act, 1990|
|Japan||The Act Concerning the Circuit Layout of a Semiconductor integrated circuit|
|Brazil||Law No. 11484, of 2007|
|European Union||Directive 87/54/EEC|
Why do you need to protect layout-designs?
As the technology is growing, there is a continuous need for newer designs of layouts to create new ICs. But what’s important here is that it takes a significant investment to come up with new layout-designs for ICs and subsequently IC masks to manufacture them.
Someone who catches hold of your design somehow may, however, simply photograph it and create an IC mask from those photographs for a fraction of the cost that you spent on designing it from scratch.
We see that the cost to create layout-designs is high and the cost to copy them is easy, so in such a situation, you’d want to protect your layout-design.
If you have other means of protecting your layout design, you may choose to forego protection under the SICLD Act of 2000.
By giving protection to layout-designs for 10 years, the governments ensure that in return layout-designs are disclosed to the public.
The benefit of disclosing layout-designs to the public is that it promotes analysis, evaluation, study, and teaching of the new designs so as to enable improvements of existing integrated circuits, just like improvements in technology due to public disclosure of patent specifications.
So what does not amount to an infringement of the registered layout-design?
Where the layout-design is reproduced only for the purpose of scientific evaluation, analysis, and research or teaching, it will not amount to infringement. Also, if a person makes a layout-design identical to a registered layout-design, by his independent intellect, it will not amount to infringement. In this case, the concerned person will have to prove that there was no infringement.
After going through the article so far one question may be wandering in your mind that is, why not give a patent for the original layout-design?
How To Protect PCB Layout
The only protection that can be availed in the case of Printed Circuit Boards, PCBs is copyright of your way of implementation. If someone copies your PCB/ circuit board by hand to a new network, the copyright is no more applicable to the new network.
However, the circuits themselves can be patented if they happen to fulfill the patentability requirements.
There have been arguments made for the protection of PCBs similar to that of layout-designs of semiconductor chips but that seems to be far off as of now.
We are plugging this article into making a case for the protection of PCBs in China. However, the arguments are valid even for India.
In it, the author argues that a sui generis right similar to mask-works of semiconductor chips should be given to PCB layouts as at present there is no effective protection for PCBs available.
How You Can Protect PCB IP?
Although copyright is there for layouts and schematics of PCBs but is not an effective tool.
Since there is no effective legal way to protect PCB IP, you have to use other means available at your disposal. Sometimes you have to filter out sensitive information from design data before sending it to the manufacturer.
Either you can do it manually or you may take the help of many professional companies in the market that help you protect your PCB IP from your semiconductor manufacturer.
Some of the steps that are taken to protect PCB IP have been presented in the infographic below. You can take a look at it to find out your potential options for securing your design.
Generally, there is confusion among the technical and legal fraternity about the kind of protection available to the circuits, schematics, layouts of PCBs, layout-design of semiconductor chips, techniques to fabricate and manufacture the semiconductor chips, etc. We have tried to wean off these confusions to some extent and hope you got what you came here for.
For your quick revision, let me conclude here that circuits and techniques for fabrication and manufacturing semiconductor chips can be patented subject to patentability criteria.
Schematics and layouts of PCBs can be protected using copyright, but that is not an effective tool to really stop competitors from copying your work.
Layout-designs of integrated circuits are protected and registered under SICLD Act 2000. But in many countries, these are protected using available general IP laws instead of sui generis law.
Later in the article, we learned about the sui generis rights given to layout-designs of semiconductor chips and various ways to protect PCBs other than available legal tools.
We hope you have had a good read. Before you leave, we’d recommend you go through this interesting list of articles curated for avid readers like you.