Topology of an integrated circuit: concept and rights to it. Topology of an integrated circuit, trade secrets as objects of legal protection Topology of an integrated circuit conditions of protection
The evolution of security. Integrated circuits are one of the most important objects intellectual property, since they are widely used in all modern devices for both household and industrial purposes.
The technical evolution of integrated circuits has gone through several stages. The prototype was radio receivers, for the creation of which circuit diagrams and wiring diagrams were used. The first were graphic images of the electrical connections of all elements of electronic devices with their specifications, and the second were the spatial arrangement of the above elements, i.e. radio tubes, resistances, capacitors, inductances, etc.
With the advent of semiconductor transistors, all parts of electronic devices began to be mounted on printed circuit boards, which made it possible to reduce the size and power consumption of devices. The subsequent miniaturization of electronic devices led to the creation of microcircuits in which all elements were created on a single semiconductor chip. The first microcircuit was developed D. Kilby in 1958 and produced in 1961 by Fairchild Semiconductor Corp. And Texas Instruments.
Over time, microcircuits have improved, their degree of integration and reliability have increased. Currently, microcircuits can contain millions of elements. One of the most important types of integrated circuits general purpose steel microprocessors created by companies Intel in 1971 and Motorola, which became the basis for the broadest computerization of all spheres of activity.
Generally, integrated circuits are defined as follows.
Integrated circuit- This is a product in which active (transistors and diodes), passive (resistances, capacitors and inductances) and electronic circuit components connecting them are embodied in the volume of a composite semiconductor carrier.
Currently, the production of integrated circuits is one of the most important branches of industrial production, ensuring the improvement and creation of new products and new industries.
As with other scientific and technological achievements, chip manufacturers from the very beginning faced the problem of competitors copying their achievements. However, the nature of microelectronics is such that copying has never been easy. Sometimes the cost of analysis and repetition is higher than the cost of in-house research, development and production.
The exceptional complexity of modern integrated circuits ensures their technical protection against copying. However, Western firms that understand the need for patenting to protect their scientific and technical achievements in the domestic and international market, sought legal protection their microcircuits. The first forms of protection of topologies (spatial arrangements of elements) of integrated microcircuits were carried out by copyright by analogy with diagrams, maps, and drawings. Subsequently, the topologies of integrated circuits began to be protected by specialized laws, which, according to the principles of the emergence of law, were related to the legislation on industrial property.
In 1984, the US Semiconductor Circuit Protection Act was passed, and in 1985, a similar law appeared in Japan. In 1986, the European Union adopted the Directive “On the Legal Protection of Topologies of Semiconductor Products.”
In countries with economies in transition, the first law on the legal protection of integrated circuit topologies was adopted in 1992 in Russian Federation 2, when many developed countries have already provided protection for integrated circuit topologies.
At the international level, the first attempt to protect integrated circuit topologies was made in Treaty on Intellectual Property for Integrated Circuits 3, adopted at the WIPO Diplomatic Conference in Washington in 1989. This Treaty did not enter into force because the main chip manufacturers, primarily the United States and Japan, considered a number of its provisions on compulsory licensing not to correspond to their interests. In Art. 4 of the Treaty contains an important rule, according to which “each Contracting Party is free to fulfill its obligations under this Treaty by a special law on topologies or its law on copyright, patents, utility models, industrial designs, unfair competition or any other law or a combination of any of these laws" 4. In other words, Integrated circuit designs may be protected by various intellectual property laws.
The main provisions of the Agreement on Intellectual Property in relation to integrated circuits, with the exception of Art. 6(3), subsequently
Council Directive of December 16, 1986, on the Legal Protection of Topographies of Semiconductor Products (87/54/EEC) // Official Journal of the European Communities. No L 24 of January 27. 1987. P. 36.
2 See: Intellectual property. M., 1992. No. 3-4. pp. 11-15.
3 See: Agreement on intellectual property in relation to integral
schemes Washington: WIPO. IP1C/DC/46. 05/26/1989.
208 Chapter 5. Patent law
§ 5.19. Protection of integrated circuit topologies 209
tion were included in the TRIPS Agreement, which recognized the topologies of integrated circuits as an object of intellectual property.
Object of protection. Integrated circuits are one of the most important pieces of intellectual property because they are extremely widely used in almost any modern product, from household goods to automated systems, sites, automated production devices. All modern vehicles, both civil and military, are unthinkable without the widespread use of integrated circuits.
The first definitions of integrated circuits and their topologies were given in the European Union Directive and the Integrated Circuits Intellectual Property Treaty. Similar definitions are used in the legislation of some countries with economies in transition, but they contain inaccuracies due to insufficient understanding of the technical essence of the object of protection. Without claiming completeness, we can offer the following definition.
The topology of an integrated circuit is the spatial arrangement of all components of an integrated circuit embodied in a semiconductor medium.
The object of protection is the topology of integrated circuits, which are implemented in certain products. Although protection is granted to integrated circuit topologies, knowledge of the topology is not sufficient to recreate the product in which it is used. It is necessary to know the characteristics of all active and passive elements of the microcircuit. However, it is extremely difficult to establish the detailed characteristics and properties of millions of active and passive elements. For very large integrated circuits, reverse engineering proves to be extremely difficult and expensive. Modern integrated circuits are reliably protected technically, and their additional legal protection is not always necessary.
Subjects of protection. Topologies of integrated circuits are recognized as the result of the creative work of developers. Microcircuits cannot be created by one person at his own expense. Consequently, the topology of integrated circuits is always service objects.
The primary subjects of law can be three categories of persons:
Successors of the above persons.
In relation to subjects of rights to topologies of integrated circuits, the following may apply: mutatis mutandis(with appropriate modifications) the provisions discussed in detail in § 5.6.
Conditions of legal capacity. The right to the topology of an integrated circuit is certified by a certificate of official registration of the topology of an integrated circuit, for which the applicant Lol. submit to the patent office following documents:
Application for issuance of a certificate;
Abstract.
In the Russian Federation, the requirements for deposited documents are established in the Rules for the preparation, submission and consideration of applications for official registration of topologies of integrated circuits, in accordance with which deposited materials must contain:
1) a complete set of one of the following types of visually perceived
| materials that display each layer of the registered topolo
gii:
Layer-by-layer technological drawings;
Assembly topological drawing, including specification;
Photos or copies from photo templates (on paper); photographs on paper of each layer of the topology recorded
in an integrated circuit;
2) four samples of an integrated circuit, including registers
controlled topology in the form in which it was used for the purposes
making a profit.
Essentially, these requirements are aimed at identifying the applicant’s trade secrets and know-how, since almost everything listed is a closely guarded secret (top-secret) developers and disclosing them in any form deprives developers of competitive advantages and undermines further development and production of microcircuits. Thus, the bulk of the deposited materials relates to the proprietary information of the developer, who will never transfer reliable information Patent Office, since the information will become available to third parties, although Art. 4(2) of the European Union Directive states that countries must ensure the non-disclosure of secrets contained in deposited materials.
Realizing that the deposited materials relate to the secrets of the applicant, the developers of the Rules made a reservation: “If any layer of the topology contains information of a confidential nature (for example, related to know-how), in visually perceptible materials the corresponding part of this layer (or the entire layer) may be removed and included in the deposited materials identifying the topology in coded form."
The reservation made is no less absurd.
Intellectual property. M., 1993. No. 3-4. P. 230.
210 « Chapter 5. Patent Law
§ 5.19. Protection of integrated circuit topologies 211
First, information about each layer of the topology is secret.
Secondly, it is difficult to obtain a digital image of the layers of the chip and encode this image.
Thirdly, any encoded information can be decoded by interested parties.
In other words, the requirements for deposited materials cannot be considered justified. The patent office has no right to demand the applicant's secret information, and the applicant should not and will not provide it.
The requirement for samples of microcircuits submitted for deposit is absurd, since the applicant is asked to declare such a microcircuit so that third parties can obtain from it a visually perceptible image of each layer of the topology! The requirement is not only absurd, but also impossible for modern integrated circuits. Why should a designer create chips that can be easily copied by third parties? Apparently, the developers remembered the futility of the efforts of the institutes and enterprises of the USSR Ministry of Medium Engineering in layer-by-layer scanning of foreign microprocessors and in establishing the production of “crooked” copies of these microcircuits.
Apparently, there were naive hopes that foreign manufacturers would begin to register their integrated circuits with all their production secrets and designs. Naturally, this did not happen. As a result, just over 200 topologies are registered in Russia. Moreover, no one can guarantee that the issued certificates are confirmed by deposited materials that actually relate to the declared topologies. After all, essentially no examination is carried out, at least in the patent office itself.
Analysis of the requirements for deposited materials identifying an integrated circuit shows that Patent offices have created an ineffective system for registering and protecting topologies. The developers, having set goals that have nothing to do with protecting topologies, were unable or unwilling to understand that requirements for deposited documents should be very simple and not affect the secrets of applicants.
The patent office could require any documents from the applicant that, in his opinion, identify its topology. To do this, it is quite enough to provide only selective information By topology, for example, an image of any part of any layer of an integrated circuit, i.e., a kind of “Easter egg” on the basis of which no one could create a new chip, but such deposited materials could be enough for the applicant to convincingly reject third-party claims to his topology.
This is precisely the approach used in the Rules for the preparation, submission and consideration of applications for official registration of programs for electronic
computers and databases in which it is established that “in order to identify the deposited computer program, materials should be submitted in the amount of the first 25 and last 25 pages of the listing (hard copy) of the source text” 1 . Similarly, requirements could be established for deposited materials identifying the topology. Undoubtedly, the applicant can, in this case, provide any information and obtain a protection certificate. An example would be the receipt from the Russian Patent Office of Certificate No. 2006613993 dated September 21, 2006 on the official registration of the Windows Vista computer program by a person who has nothing to do with the actual developer and creator of this operating system.
Legislation on the protection of integrated circuit topologies recognizes two conditions security:
Creative nature of topology;
Originality of topology.
Although both conditions are interrelated, there are differences between them. Creative character The work of the authors of the topology is recognized, since the authors of the topology are considered to be individuals, as a result of whose creative activity the topology was created. From a content point of view, it is impossible to deny the creative nature of the authors of topology. Case V that although the electrical connections of the components of the microcircuit are predetermined by the corresponding circuit diagrams, the location of these components and the connections between them are realized thanks to the creative activity of the authors of the topology.
We may recall the presumption of creativity of the compilers of certain works, discussed in § 2.12, since any location materials in the collection can be considered creative due to the impossibility of proving otherwise. The same is true for topologies: any spatial arrangement of elements of an integrated circuit should be recognized as creative. If we follow the analogy with the creative nature of objects copyright, then creativity extends to almost any drawing documentation that is close to the topologies of integrated circuits. Finally, if Malevich’s four perpendicular lines are recognized as the result of great creativity, then there are no objective reasons to deny creativity to the developers of topologies containing millions of elements and lines of an electrical nature connecting them.
The second condition of protection is recognized originality of topology. IN Art. 1448(2) Civil Code The Russian Federation establishes that “the topology of an integrated circuit is recognized as original unless proven otherwise.”
Intellectual property. P. 39.
212 Chapter 5. Patent law
§ 5.19. Protection of integrated circuit topologies 213
The Integrated Circuits Intellectual Property Treaty defines originality more inclusively." Comments to the draft treaty noted that "two conditions must be met to satisfy the requirement of originality, namely, that the layouts are the result of their creators' own intellectual effort and that they are not were generally known among the creators of topologies and manufacturers of microchips at the time of their creation" 2 These conditions are also contained in the European Union Directive and are confirmed, with some national specificity, in the legislation of countries with transition economies. It is not difficult to establish that the originality of the topology will essentially coincide with its. novelty “among the creators of topologies.”
Therefore, for integrated circuits the conditions for the protection of topologies are met if the topology is the result of creative work and is new, unknown to other developers and manufacturers of integrated circuits. The second condition of protectability is important for third parties who intend to challenge the granted rights to the registered chip topology.
Since the patent office cannot verify the second condition of protectability due to the lack of information about other topologies in the world, it is forced to use appearance system issuance of security documents for topologies of integrated circuits. Therefore, the absurd requirements for deposited documents mentioned above are generally unnecessary, since the patent office cannot carry out a substantive examination. If third parties raise objections to the issued certificates for any topology, then the holder of the certificate must himself prove the legitimacy of the received certificate, which is issued under the responsibility of the applicant.
Thus, the patent office carries out only a formal examination of the application for a title of protection. If, as a result of the examination, it is determined that the documents included in the application are drawn up correctly, a decision is made to issue a certificate for the topology. Such a certificate is issued by the patent office after entering information about the topology into the Register of Topologies of Integrated Circuits. The topology certificate certifies the authorship, priority of the topology and the right to use it.
The patent office charges fees for “legally significant acts.” Unlike a patent, which is maintained only upon mandatory payment of regular fees, no fees are paid for maintaining the validity of a topology certificate. Others
1 See: Agreement on the protection of intellectual property in relation to integral
ny schemes. Washington: WIPO. 1PIC/DC/46. 05/26/1989. S. 4.
2 Draft Agreement on the protection of intellectual property in relation to integ
ral schemes. Washington: WIPO. IPIC/DC/3. 01/31/1989. P. 20.
words, the topology certificate does not need to be maintained And it is valid until the end of the provided period of protection without paying fees.
Granted rights. The scope of legal protection of a topology is determined by the totality of its elements and the connections between them presented; In deposited materials. This form of granting protection is formal, since the patent office does not conduct a substantive examination and cannot know either the totality of the topology elements or the (Corresponding connections). Therefore, in reality, the topologies of integrated circuits are protected as such.
Unlike other objects patent law Legislation on the legal protection of topologies allows notification of the rights of the author of the topology or his legal successor. Such alerts or notifications can be made on integrated circuits with a protected topology. The legislation of countries with transition economies allows various types alerts.
For example, in the Russian Federation, notifications are presented in the form of a capital letter “T” in quotation marks, in square brackets, in a circle, in a square, or with an asterisk, supplemented by the start date of the exclusive right and information allowing the identification of the copyright holder. The type of such notifications was first introduced in Art. 9 Directive of the European Union “On the legal protection of topologies of semiconductor products”.
When analyzing the rights granted to the topologies of integrated circuits, you can use mutatis mutandis(with appropriate amendments) provisions on the legal protection of inventions, discussed in detail in § 5.11. These provisions relate to both personal non-property rights (copyright), so and to exclusive right to use the topology. In addition, the right to royalty.
From the standpoint of the principle of dualism of intellectual property, legislation should establish rules on the exclusive right to produce goods that embody the topologies of integrated circuits.
The exclusive right includes right of reproduction(production of goods) and right of distribution(sale and other introduction into civil circulation of goods). The right to distribute integrated circuits is subject to exhaustion, i.e. it ceases to be valid upon the first sale or other transfer of ownership of that integrated circuit. The right to exhaustion is implied in Art. 6(5) of the Treaty on Intellectual Property in Relation to Integrated Circuits and Art. 6 THREE PS Agreements. In an imprecise form, the exhaustion of the right to distribution is established in Art. 1456(3) of the Civil Code of the Russian Federation.
214 Chapter 5. Patent law
§ 5.19. Protection of integrated circuit topologies 215
Copyright protection. As already noted, not all provisions of the legislation on the legal protection of integrated circuit topologies are impeccable not only from a legal, but also from a technical and even linguistic point of view.
The legislation contains language that suggests that integrated circuit topologies can be protected not only by industrial property legislation, but also by copyright. A.P. Sergeev rightfully believes that “registration of topologies is not prerequisite their legal protection."
Indeed, in accordance with Art. 1452(1) Civil Code of the Russian Federation copyright holder Maybe at will register the topology during the validity period exclusive right to topology. In other words, even before submitting an application for registration of a topology, the author or other person already has rights to the topology. They could have such a right only due to the very fact of creating a topology, which is typical for the emergence of copyright protection. The commonality of topologies of integrated circuits with objects of copyright is also indicated by the list of unprotected objects, which is given both in the legislation on copyright and in the law on the protection of topologies. In both cases, protection does not extend to ideas, methods, systems, etc.
Thus, topologies of integrated circuits can be considered objects of copyright and are protected by relevant legislation. The situation is not surprising, since in all respects the topologies are very close to cartographic objects (see § 2.5). In addition, the very term “topology” used in the Civil Code of the Russian Federation, as well as in the legislation of countries with transition economies, is an inaccurate translation of the term "topography" which is used in the European Union Directive, the Integrated Circuits Intellectual Property Treaty and the TRIPS Agreement. Therefore, it would be correct to use the term "topology", and the term "topography", which is directly related to topographic maps, which are recognized objects of copyright. The term “topology” has become established in a special branch of mathematics, which studies the topological, i.e., unchanging, properties of figures under any permanent deformation.
The same problems exist with regard to dual protection of integrated circuit topologies as for industrial designs discussed in § 5.18. However, due to the utility nature of topologies, the negative consequences of double protection are not as important.
Sergeev A.P. Decree. op. P. 693.
Security restrictions. Like other objects of intellectual property, the protection of integrated circuit topologies is not absolute, since certain restrictions are imposed on the protection.
In the legislation of countries with transition economies The following actions of third parties are not considered a violation of the exclusive rights to the protected topology:
Using topology for the purpose of assessment, analysis, research
or training;
Using topology for personal purposes without making a profit;
Using an independently created identical topology; use of legally purchased goods with integral
cross-schemes, if the buyer did not know and should not have known about the contractual provisions of these schemes;
The use of integrated circuits that embody protected topologies, if they are legally introduced into civil circulation. The first named use is fog form re-engineering or reverse technical analysis, which was discussed
The second use is far-fetched and meaningless. It's hard for yourself
imagine using the topology for personal purposes, for example at home,
garage, dacha. It is the topology, and not the integrated circuits themselves.
The third use is identical right of prior use, which was examined for other objects of patent law.
The last case refers to the exhaustion of the right to distribute
both goods.
Duration of protection. In Art. 1457 of the Civil Code of the Russian Federation, the protection of topologies of integrated circuits is 10 years, however, the announcement of TRI PS allows the protection of topologies for 15 years with the possibility of
;nta creation of topology.
The beginning of the validity period of the exclusive right to use the tology is determined by the earlier of the following dates:
First use of a documented topology
Registration of the topology with the patent authority.
If an identical original topology appears, regardless
After the expiration of the exclusive right, the topology becomes public domain. It must be emphasized that microcircuits become morally and technically obsolete and are discontinued much earlier than the end of the protection period for their topologies, usually within three to five years. In other words, deadline protection of topologies of integrated microcircuits is overestimated. After obsolescence
Chapter 5. Patent right
topologies are not of interest even to countries whose technological level of development allows them to copy obsolete and discontinued microcircuits.
The situation with the period of protection of microcircuit topologies is reminiscent of the duration of copyright protection of computer programs, where programs become obsolete in three to five years and turn out to be of no use to anyone, while copyright for such already useless objects continues to exist. If for other works of literature, science and art interest in any object can arise at any moment of protection, then for computer programs it never arises: old computer programs turn out to be completely unnecessary, like old topologies of integrated circuits.
The topology of an integrated circuit is the spatial-geometric arrangement of a set of elements of an integrated circuit and the connections between them, recorded on a material medium.
Integrated (micro) circuit - microelectronic device - an electronic circuit of arbitrary complexity (crystal), manufactured on a semiconductor substrate (wafer or film) and placed in a non-separable housing, or without one.
The object of legal protection is only the original topology created as a result of the creative activity of the author.
Relations related to the creation, legal protection and use of topologies of integrated circuits are regulated by the Civil Code of the Russian Federation (Part 4, Chapter 74 “Right to Topologies of Integrated Circuits”).
The author of a topology is an individual, as a result of whose creative activity this topology was created. If a topology is created jointly by several individuals, each of these persons is recognized as the author of the topology. Individuals who did not make a personal creative contribution to the creation of the topology, but provided the author only with technical, organizational or material assistance, or contributed to the registration of the right to use the topology, cannot be recognized as authors.
Registration. The copyright holder may, at his own discretion, register the topology with the Russian Agency for the Legal Protection of Computer Programs, Databases and Topologies of Integrated Circuits (hereinafter referred to as the Agency) by submitting the appropriate application. If the test result is positive necessary conditions The Agency enters the topology into the Register of Integrated Circuit Topologies, issues the applicant a certificate of official registration and publishes information about the registered topology in the official bulletin of the Agency.
To notify about his rights, the author of a topology or his successor has the right to indicate on the protected topology, as well as on products that include such a topology, a notice of this in the form of a highlighted capital letter “T” in a circle or square, the start date of the exclusive right to use of topology and information that allows identifying the copyright holder.
The exclusive (property) right to use the topology is valid for 10 years.
Production secret (know-how)
The literal translation of “know-how” is “I know how.”
U patent system There is an alternative when intellectual property is kept secret. They have real value only if they are reliably protected from disclosure. The most famous example of such protection is the formula of the Coca-Cola drink, which has been kept secret since 1886. Keeping production secrets secret as a means of ensuring an actual advantage over other participants in the turnover is one of the most ancient forms of protecting creative results of an applied nature.
A production secret (know-how) is information of any nature (production, technical, economic, organizational and others), including information about the results intellectual activity in the scientific and technical field, as well as information about methods of carrying out professional activities that have actual or potential commercial value due to their unknownness to third parties, to which third parties do not have free access legally and in respect of which the owner of such information has introduced a regime trade secret.
Exclusive right to a production secret
The owner of a production secret has the exclusive right to use it in any way that does not contradict the law (exclusive right to a production secret), including in the manufacture of products and the implementation of economic and organizational decisions. The holder of a production secret may dispose of the said exclusive right.
Responsibilities of the parties.
Creation and transfer to the user of a work that complies with the terms of the concluded agreement, in particular, literary work must correspond to the type of literature and genre specified in the order agreement, and have a volume agreed upon with the publishing house;
Personally complete the work ordered to him. Involving other persons in the work, changing co-authors is permissible only with the consent of the customer organization, which is usually formalized by drawing up a new or changing the previous author's agreement;
Provides the work within the period established by the contract. The author may submit the work ahead of schedule, provided that the contract does not stipulate otherwise. The work must be presented to the customer in finished form, that is, all elements must be included;
If necessary, modify the work at the request of the customer. The need for revision can be identified as a result of examination of the work, when it generally complies with the requirements of the contract, but requires certain clarifications or changes No.;
Take part in the preparation of the work;
Do not transfer to third parties the work specified in the contract or its part for use in the same way, within the same limits, unless the consent of the original user is obtained.
User Responsibilities:
Accept and review the work submitted by the author. In this case, the user checks the quality of the work and, if necessary, its completeness. As a rule, the fact of acceptance of a work is formalized by a special document that confirms the delivery of the work by the author. The copyright agreement may contain a provision stating that the work is accepted if the user, within a certain period of time, has not demanded from the author a certain design and completion of the work;
Respects the personal non-property rights of the author;
Really use the work;
Pays remuneration.
Clause 1 of Article 1448 of the Civil Code – the topology of an integrated circuit is the spatial-geometric arrangement of a set of elements of an integrated circuit and the connections between them recorded on a material medium.
Such a material carrier is a separate crystal or a set of crystals, on the surface or in the volume of which both individual elements of the microcircuit and the connections between them are located.
The topology itself belongs to protection, regardless of the type of media it is reproduced on.
The protection of this object does not depend on the specific material medium containing this object intellectual rights.
Legal protection is provided only to original topologies of integrated circuits. Originality is the main and only legally significant feature necessary to provide the topology of legal protection.
The Civil Code provides for 2 criteria according to which the topology of an integrated circuit can be recognized as original:
By virtue of the direct instructions of paragraph 3 of Art. 1448 of the Civil Code, the legal protection provided for topologies of integrated circuits does not extend to ideas, methods, systems, technology and encoded information that can be embodied in this topology.
Subject The rights to topologies of integrated circuits are the author, as well as the person to whom exclusive rights in relation to the corresponding microcircuits can be transferred by force of law or contract.
Article 1450 of the Civil Code establishes a presumption - until otherwise is proven, the author of the topology must be recognized as the person indicated in the application for the issuance of a certificate of state registration of the topology of an integrated circuit.
The creation of modern topologies, as a rule, requires the collaboration of large teams of authors. In most cases, the topology will be considered a service work. Relations associated with the implementation of joint creative activities to create a given topology can be considered as co-authorship relations.
Art. 1461 of the Civil Code - if the topology is created by an employee in connection with the performance of job duties or a specific task of the employer, it is recognized as an official topology.
At the same time, a topology created by an employee using monetary, technical or other material resources of the employer, but not in connection with the performance of his job duties or a specific task of the employer, is not considered official.
Article 1464 of the Civil Code - the topology can be created when performing work under a state or municipal contract. In this case, there is a general presumption that the exclusive right belongs to the performer, or jointly to the performer and the public legal entity, or only to the public legal entity.
State registration of this object is established as a right, and not an obligation of the copyright holder, i.e. is voluntary, optional and does not affect the very fact of recognition of rights and the provision of legal protection.
Clause 1 of Article 1457 of the Civil Code - the exclusive right to the topology is valid for 10 years. The validity period of this right is calculated either from the date of first use of the topology, or from the date of registration of the topology with Rospatent.
Today we’ll talk about the third non-traditional object of intellectual property - the topology of integrated circuits. At first glance, it may seem that the object is very complex, and only a person with deep knowledge in the field of science and technology can understand it, but in reality this is not the case. We will try to clearly explain the essence of this object and why it is not classified under patent law.
Concept and general characteristics, examples
The object under consideration will relate to the field of microelectronics. Article 1448 of the Civil Code of the Russian Federation defines both an integrated circuit and its topology. Let's rephrase it to make it clear.
An integrated circuit is a specific electronic product in which all elements are connected and perform a common function.
The topology of integrated circuits is the arrangement of various elements on this chip and the connections between them. The law speaks of the “spatial-hermetic” arrangement of these elements. The elements here are blocks, triggers, drivers, address stacks and everything else that we see on the surface of any microcircuit.
Thus, the law does not protect the microcircuit itself as an electronic device, but its topology - that is, the arrangement of elements on the surface. Most likely, this determined the nature of the topology of the integrated circuit as an unconventional object, and not a patented object. o rights: the system of arrangement of the components of the microcircuit does not have a significant impact on scientific and technological progress, as happens, for example, with inventions and utility models.
By virtue of the same Article 1448 of the Civil Code of the Russian Federation, it is not required that the elements themselves be new; it is enough that the connections between them themselves are original.
Let's analyze an example from the FIPS register - the topology of the integrated circuit No. 2017630100, which is called “Radio frequency microcircuit for driver's license and registration certificates vehicle" The description (abstract) for this object indicates the features of the microcircuit itself, the algorithms and technologies embedded in it - it is clear that this was precisely the goal of the author’s creative activity. However, the law will still protect the spatial arrangement of its elements on this microcircuit, and not the technical ideas embedded in it.
Personal non-property rights
Topology has an author - a person who created the object with his intellectual work. The author has only the right of authorship for the topology - the legal ability to be considered the author and at the same time a guarantee to recover compensation for moral damage from persons who may try to appropriate authorship to themselves. The law does not provide for other personal non-property rights.
Exclusive right
As usual, it initially arises from the author, but in practice the copyright holder is most often an organization. In general, the exclusive right to topologies does not have any distinctive features. The law mentions the following actions within the scope of use of this object:
- Reproduction of the topology, for example, on the chip itself. At the same time, the law allows the reproduction of only that part of the topology that is original.
- Import into the territory of Russia, as well as export from it;
- Introduction into civil circulation of both the topology itself and the microcircuit or other product where it is reproduced. Most often, the basis will be some kind of transaction, for example, a purchase and sale.
The law also mentions a situation where another citizen came up with a topology that someone else had already created. In this case, this author will have an exclusive right regardless of the persons who previously created the same topology.
In addition, the law stipulates cases when it is allowed to use an object without the consent of the copyright holder. In particular, these are:
- Use for personal purposes, as well as within the framework of research and analysis.
- Distribution of microcircuits on which the topology is reproduced, if they were legally introduced into civil circulation. For example, if this microcircuit was purchased.
The validity period of the exclusive right to the topology is 10 years without the possibility of extension. Moreover, the law provides for two possible moments from which this period may begin to run: in the first case, this is the moment of the first use of this object; in the second case, it is a state registration carried out at the request of the copyright holder. The date will be decisive: which event has it earlier - from that moment the period of validity of the exclusive right will flow.
Let's return once again to the situation where two different people created identical topologies. The deadline in this case will run from the moment the first of them is used, and the second author will have to “adjust” to this deadline.
State registration
Once again, please note that it is not mandatory. If we look at the statistics, in 2016 only 174 topologies of integrated circuits were registered (out of 186 applications). This is not much when compared, for example, with the number of registered breeding achievements (more than 500 of them were registered during the same period). Let's briefly go over the registration features.
You can register a topology during the period of its protection, but if the object is already in use, then you can apply for registration within two years. The registration body is Rospatent, namely its subordinate institution, FIPS.
An application is submitted for only one topology. It must contain:
- Statement;
- Materials that identify the topology (diagrams, drawings), as well as an abstract that is reflected in the registration certificate. An example of an abstract for any topology can be easily found if you familiarize yourself with the registry (for information on how to work with the FIPS registry, see this article).
More details on the procedure can be found in Order of the Ministry of Economic Development of Russia dated September 30, 2015 N 700.
Thus, the topology of an integrated circuit is the most important object of intellectual property in the field of microelectronics. When a topology is created, the author is looking for a specific solution regarding the operation of the microcircuit, however, it is not the content of this decision that will be protected by law, but only the form - the arrangement of the elements of the microcircuit.
E.P. Gavrilov, Doctor of Law.
E.A. Danilina, candidate of legal sciences.
Fundamentals of legal protection
Since the second half of the 20th century, microelectronics has been rapidly developing throughout the world. In various devices, machines and mechanisms, integrated circuits (hereinafter referred to as ICs) are widely used - microelectronic products, including electronic circuits that consist of individual elements that are in certain connections with each other. Integrated circuits are also called "chips". An IC (chip) is a material object that embodies certain technical solutions.
The technical solutions embodied in the IC consist of a large number of electrical (electronic) circuits connecting individual elements with complex connections that run both horizontally and vertically. As a result of the author's work, a three-dimensional electronic circuit appears, the geometric pattern of which is called the “topology of an integrated circuit” (hereinafter referred to as “topology”). The IC topology is essentially the embodiment of an electronic circuit at the microlevel in crystal structures.
It should be noted that the word “topology” means the science that studies the properties of figures that do not change under any deformations produced without breaking or gluing. The creation of a new topology is a creative process, and the topology itself is the result of technical creativity, similar to inventions or utility models.
Some features of topologies (for example, difficulties arising when expressing the essence of a topology in the form of a claim), as well as some factual circumstances (the clear leadership of the USA and Japan) led to the fact that topologies in many countries of the world were “withdrawn” from the scope of patent protection. As a result, a special legal system their protection, which does not fit into either patent or copyright protection. In Russia, this special system is expressed in the Law of the Russian Federation of September 23, 1992 N 3526-1 “On the legal protection of topologies of integrated circuits” (hereinafter referred to as the Law). Changes have been made to it Federal law Russian Federation "On amendments and additions to the Law of the Russian Federation "On the legal protection of topologies of integrated circuits" dated July 9, 2002 N 82-FZ<*>.
<*>Patents and licenses. 2002. N 8. P. 49.
Exclusive right and its duration
Protection of topologies arises automatically from the moment of their creation, that is, the expression of the topology in some objective form (drawing, computer memory, CD, sample chip). For protection to arise, no formalities are required, although they are provided for by the Law.
Among such formalities, we should first of all mention the affixing of the topology protection mark, consisting of the letter “T”, the date of the first use of the topology and the name (name) of the owner of the rights (clause 8 of article 9 of the Law), as well as the optional state registration topology (clauses 1 - 7 of Article 9 of the Law). At the same time, according to paragraph 1 of Art. 9 of the Law, topologies containing information constituting a state or other secret protected by law are not subject to official registration.
Topology is protected based on the principle of originality. In fact, this means that any independently created topology enjoys legal protection. Moreover, a topology created by the author using elements from other (foreign) topologies also receives legal protection. In this case, the combination of various elements proposed by the author must be original (clauses 1 - 3 of Article 3 of the Law).
“An original topology is one created as a result of the creative activity of the author and which is unknown to the following persons: the author and (or) specialists in the field of topology development on the date of its creation” (clause 2 of article 3 of the Law). Thus, to assess the originality of topologies, not only objective but also subjective novelty (unknown to the author himself) is taken into account. Features of the norms clauses 1 - 3 art. 3 - the presence of a “specialist” figure, which allows us to conclude that the approaches to topologies and patentable objects are similar (compare with the formulation of the inventive step from paragraph 1 of Article 4 of the Patent Law: “An invention has an inventive step if it is not clearly obvious to a specialist follows from the prior art").
The right arises not only to the topology as a whole, but also to its individual parts, if they are original. Initially, the right to the topology always arises from individual who created it, that is, the author. If there are two or more authors, they share the rights to the topology.
If the author developed the topology in connection with his implementation official duties or on the instructions of the employer, then the right to it belongs to the employer, except for cases when the agreement between the author and the employer provides otherwise. The author of a “service” topology, the right to which belongs to the employer, must be paid a certain remuneration on the basis of an agreement concluded between him and the employer. In this case, the procedure for paying remuneration and its amount are established by an agreement between the author and the holder of exclusive rights to the topology. V.I. Eremenko and L.I. Podshibikhin<*>note that this provision “should not be interpreted as imposing an obligation on the employer to enter into such an agreement.”
<*>Eremenko V.I., Podshibikhin L.I. Commentary on the Law of the Russian Federation "On the legal protection of topologies of integrated circuits" / In the book: Commentary on the legislation on the protection of intellectual property / Under the general. ed. V.I. Eremenko. M.: Legal Culture Foundation, 1997. P. 224.
The right to a topology can be assigned by its owner to any person or be an object license agreement. In accordance with paragraph 5 of Art. 9 of the Law, agreements on the transfer of exclusive rights to a registered topology are subject to registration with Rospatent, and other agreements on the transfer of rights to a protected topology may be registered with Rospatent.
It is unclear from the departmental regulations of Rospatent where information on the registration of contracts and the transfer of rights to an unregistered topology is registered and published. (However, a similar question remains unclear with regard to unregistered computer programs and databases<*>).
<*>See: Article 5 13 of the Law of the Russian Federation "On the legal protection of programs for electronic computers and databases" // Patents and licenses. 2003. N 3. P. 64.
The scope of exclusive rights to the topology is defined in clause 3 of Art. 5 of the Law. No one has the right, without the permission of the copyright holder, to reproduce the protected topology or any original part thereof, distribute by sale or otherwise, or import into the territory of Russia copies of material media of the protected topology. The use of a topology, although identical to the one that receives legal protection, but created independently, as a result of parallel creativity, is not a violation of exclusive rights (Clause 2 of Article 8 of the Law). Exclusive rights apply only to cases of use that are carried out for the purpose of making a profit (fourth paragraph of paragraph 1 of Article 1 of the Law).
If a copy of an IC with a protected topology was introduced into civil circulation legally, then in the future it participates in civil circulation freely (the principle of “exhaustion of rights”).
Illegal use of a protected topology without the consent of the copyright holder entails the obligation to compensate for losses. In this case, a person who did not know and should not have known that he was using an IC with an illegally reproduced protected topology does not compensate for losses. This rule corresponds to the principle: liability arises in the presence of guilt (fourth paragraph of paragraph 1 of Article 11 of the Law; Article 1064 of the Civil Code of the Russian Federation). From this we can conclude that the guilty violator is obliged to stop the offense and compensate for the losses caused. The law contains special rules regarding the case when a protected topology is illegally used by an innocent violator. Then, having received a notification from the copyright holder about the illegality of his actions, the violator has the right to continue using the topology, but with payment of monetary compensation to the copyright holder (second paragraph of paragraph 1 of Article 8 of the Law).
The validity period of the exclusive right to the IC topology is 10 years, calculated from the date:
the first open use of topology in Russia or abroad, documented;
state registration of the topology in the patent office, if it has not been used openly before.
Obviously, the period that expires first is taken into account. However, if, as a result of independent, parallel developments, two or more identical topologies receive protection, then the period of protection for all of them expires after the expiration of the term of protection for any of them (Article 10 of the Law).
Discussions about the legal protection of topologies
It was mentioned above that a special kind of law is applied to IC topologies, which is neither patent nor copyright. Nevertheless, attempts to apply patent law or copyright protection to them still continue. Experts note that the legal protection of topologies is comparable to the legal protection of both inventions and computer programs<*>.
<*>Eremenko V.I. New edition of the Law on the legal protection of integrated circuit topologies // Invention. 2003. N 5. P. 4.
An interesting discussion took place in 2002 - 2004. during the All-Russian scientific and practical conferences "Legal protection of intellectual property in modern technologies." Proposals to expand legal protection and extend it to such preparatory materials as logical and circuit descriptions were made by M.V., who spoke at the conference. Bass<*>. He also raised the issue of reverse design (or "reverse engineering"), in which topology information is obtained by grinding down layers of a chip and then reproduced. During the discussions M.V. Bass cited as an example the US courts' approach to determining infringement: reverse design is illegitimate if a later topology is created without material expense, that is, clearly using an earlier topology.
<*>Bass M.V. Problems of legal protection of new results of creative activity of developers in the field of microelectronics: Abstracts of the 4th All-Russian scientific and practical conference "Legal protection of intellectual property in modern technologies." Zelenograd. June 7, 2004. P. 11.
At the 2002 conference, co-authored with A.A. Engelhardt, M.V. Bass<*>proposed to protect, in addition to “hard cores” (IC topologies), also “soft” and “fixed cores” (description in a high-level language and electrical description, respectively) using the legal regime of know-how. Such a legal regime would protect the algorithm and flowcharts underlying the topology “by restricting access to it.” From this we can conclude that, as in the legal protection of computer programs, in the legal protection of IC topologies there is a tendency to expand the number of objects of protection and attempts legal protection ideas underlying them. At the same time, proposals for the application of legal protection by the rules of exclusive law for various preparatory and related objects (in the application to topologies - logical and circuit descriptions, in the application to computer programs - algorithms and preparatory materials) may be determined by an incomplete understanding of the complex of existing possibilities for legal protection of the object in the whole and its parts.
<*>Bass M.V., Engelhardt A.A. System-on-a-chip: issues of intellectual property protection: Abstracts of the 2nd All-Russian scientific and practical conference "legal protection of intellectual property in modern technologies." Zelenograd. June 3, 2002. P. 8.
So, A.V. Trofimenko, in particular, believes that “protecting an object under copyright law does not yet prove the absence of the need to protect the same object under patent law, which is clearly seen in the example of algorithms and computer programs”<*>. The above opinion illustrates an approach often encountered in practice, in which a mixture of complex and component objects occurs. For example, if a computer program is presented as a complex of objects, then the source text is protected under copyright law; the algorithm may be included as an integral illustrative part in an application for an invention relating to the operation of the device; a block diagram of the electrical interaction of the elements of such a device can be protected as a utility model, and the design of the splash screens and covers of the sold program and disk can be protected as an industrial design. But these will all be different objects.
<*>Trofimenko A.V. Intangible objects in civil legal relations. Saratov: Saratov State Socio-Economic University, 2004.
Often, with regard to the protection of topologies, as with regard to computer programs, the question of legal protection of preparatory materials and algorithms is raised<*>. In the case of IC topologies, it is proposed to protect the logical and circuit descriptions. At the same time, attention is not focused on the fact that the logical description is quite well protected by a patent for an invention, and the circuit description can be the subject of a utility model; that is, both are satisfactorily protected by modern patent law. Our conclusion is consistent with the information on IC topologies given on the Rospatent website: “All other elements technological process manufacturing of integrated circuits can be provided with legal protection in other ways, and the object of legal protection is only the topological diagram itself, such as relative position elements of a semiconductor microcircuit."
<*>Danilina E.A., Karpova A.V. Computer programs: problems of terminology and protection // Patents and licenses. 2002. N 6.
Topology registration practice
Registration of IC topologies is carried out in accordance with the Rules for the preparation, submission and consideration of an application for official registration of an integrated circuit topology<*>(hereinafter referred to as the Rules), according to clause 7 of which the application must contain:
<*>Patents and licenses. 2003. N 5. P. 69.
an application for official registration of the IC topology indicating the copyright holder, as well as the author, if he has not refused to be indicated as such, their location (residence), the date of the first use of the topology for profit, if any;
deposited materials identifying the topology, including the abstract;
a document confirming payment of the registration fee in the established amount or grounds for exemption from payment of the registration fee, as well as for reducing its amount.
It should be noted that Federal Law No. 127-FZ of November 2, 2004 “On Amendments to Parts One and Two of the Tax Code of the Russian Federation and some others legislative acts of the Russian Federation, as well as on the recognition as invalid of certain legislative acts (provisions of legislative acts) of the Russian Federation", adopted State Duma On October 20, 2004, registration fees were converted into government fees. Art. 333.30 of this Law establishes the amount of the state fee for performing... actions for the official registration... of the topology of an integrated circuit. When contacting an authorized federal body executive branch for carrying out actions for the official registration of a program for electronic computers, a database and an integrated circuit topology state duty paid in the prescribed amounts<*>.
<*>See: Patents and licenses. 2004. N 12. P. 65.
According to clause 16 of the Rules, “in order to identify the topology, the deposited materials of the registration application must contain:
a complete set of one of the following types of visually perceptible materials displaying each layer of the topology:
a) photographs or copies (on paper) of photo masks;
b) assembly topological drawing with the corresponding specification;
c) layer-by-layer topological drawings;
d) photographs of each layer of the topology recorded in the IC;
abstract...".
In accordance with clause 49 of the Rules, if the result of the check mentioned in clause 45 is positive, the topology of the integrated circuit is entered into the Register of Topologies of Integrated Circuits, the copyright holder is sent a notification of official registration and is issued a certificate of official registration. Then, in accordance with paragraph 4 of Art. 9 of the Law, information on the official registration of the IC topology is published in the Rospatent bulletin.
According to subparagraph "d" of clause 16 of the Rules, the annotation published in the Rospatent bulletin discloses the scope, purpose or functions of the IC and the type of technology used for the manufacture of the IC. Typically, the annotation, in addition to information about the purpose, scope and functions of the microcircuit, including the topology, also includes the main technical specifications(in some cases in the form of a table), quite fully reflecting the values of currents, voltages, signal speeds, and power necessary for identifying the topology.
As an example of an annotation, we give a topology, information about the official registration of which was published in Rospatent Bulletin No. 2(47) dated June 20, 2004 under No. 2004630008.
The name of the topology is "Eight-bit register, edge-controlled, with parallel data input-output, with inverse output to three states", the copyright holder is the Research Design and Technological Republican unitary enterprise"Belmicrosystems".
Abstract: “An integrated circuit (IC) belongs to the field of logic microcircuits for commercial and special applications under conditions of exposure to ionizing radiation. The IC can be used as part of radio-electronic equipment of nuclear power plants, spacecraft, etc. The IC is manufactured using CMOS technology using an epitaxial structure The date of the first use of an IC incorporating this topology for profit is March 30, 2002. The IC is used in mass production. The main technical characteristics of IC samples with this crystal topology comply with the standard adopted for logic ICs of the 54ACXXX series from the world's leading manufacturers (f. Airchild). , f. Motorola). Main characteristics of the IC: high switching speed (typical delay - 3 ns, clock frequency - 150 MHz); output load currents + (plus/minus) 24 mA at a supply voltage of 4.5 V; power supply from 2 to 6 V; temperature range from - 60 to +125 degrees Celsius; input voltage matching with CMOS logic; high resistance to static electricity according to the human body model > 2000 V; high resistance to snapping effect; resistance to stationary influences ionizing radiation by absorbed dose > 100 kRad."
It seems that when a topology violation is suspected, the electrical parameters are first taken into account. However, it is not entirely clear how exactly one can become familiar with the materials of an application for a topology, because clause 32 of the Rules provides for the possibility of familiarizing oneself with the submitted application only for the applicant or his representative.
The number of official registrations of IC topologies has been increasing since 2001. Thus, in 2001, 6 topologies were registered, in 2002 - 25, and in 2003 - 50 topologies. A total of 98 topologies were registered from 1999 to 2003. Thus, we can note a positive trend in the registration of IC topologies in Russia. That is why issues of their legal protection are of increasing interest to specialists.
