Global Dimensions of Intellectual Property Rights in Science and Technology (1993) / Chapter Skim
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14 Semiconductor Chip Protection as a Case Study
14 Semiconductor Chip Protection as a Case Study
Pages 329-338
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From page 329... ...
Then the provisions of that law and what some of us see as its shortcomings are discussed by focusing specifically on three areas: how the law defines the technology, its broad exceptions to proprietor's rights, and the difficulty of internationalizing protection. Let us look first at a brief history of the technology, just as Congress had to do before it passed the Semiconductor Chip Protection Act (SCPA)
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From page 330... ...
, which have set the pace of progress in the industry, have provided a fourfold increase in capacity every three yearseven though each increase has required engineers and scientists to solve ever more complex problems, driving the technology to even greater heights. The photolithographic process used to fabricate the vast majority of semiconductor chips is conceptually relatively simple.
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From page 331... ...
If the form of protection chosen for semiconductor chip products had been derived from patent law, more emphasis might have been placed, for example, on the fabrication process or on the product than on the intermediate masks. Initial proposals for a chip protection law called for an extension of copyright law, declaring mask works to be pictorial, graphic, and sculptural (PGS)
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From page 332... ...
Later drafts of the legislation created a new category of works with a separate bundle of rights distinct from those generally accorded to works under section 106 of the Copyright Act.9 Because the legislation failed to provide appropriate integration of chip protection into the copyright statute,l° it was not adopted. Instead, Congress chose to create a sui generis law outside of the copyright statute.
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From page 333... ...
They include not merely devices such as microprocessors and DRAMS that are traditionally thought of as chips. They also include, for example, thin-film heads, flat panel displays, micromechanical devices, chip packaging, magnetic bubble devices, magnetic mass storage devices, optical devices, and superconducting devices.
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From page 334... ...
of reverse engineering has not stood still since the enactment of the SCPA. Companies specializing in chip analysis can now "peel" or"strip" away a chip's various layers and provide cross sections, topological layouts, and material analyses for $10,000 to $30,000.14 These same companies can also provide the "paper trail" that is a key element of a reverse engineering defense under the act.
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From page 335... ...
A sui generis law requires a sui generis treaty a treaty that must be negotiated without any international consensus on what sort of regime for protection is appropriate. The primary multilateral effort to date was the Washington Treaty,l8 prepared under the auspices of the World Intellectual Property Organization (WIPO)
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From page 336... ...
agreement proposed in the General Agreement on Tariffs and Trade (GATT) .20 Section 6, article 35 of the TRIPS draft distributed by GATT Director General Arthur Dunkel on December 20, 1991, provides that TRIPS parties will provide protection in accordance with what are in effect the substantive provisions of the Washington Treaty, as supplemented by further provisions in section 6.
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From page 337... ...
By employing this "arm-twisting" method of inducing foreign countries to adopt our own approach, the United States has achieved some positive results in internationalizing the protection of chip topography, but the means is hardly ideal for international comity. No sovereign nation appreciates another nation dictating its laws to it, and resentment of this approach may be one of the factors hindering cooperation in multilateral efforts to harmonize the protection of chip topography worldwide.
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From page 338... ...
However, as the technology continues to develop, will Congress, or the law itself, keep pace? Unlike the Copyright and Patent Acts, the sui generis SCPA has neither a flexible and expansive subject matter nor a historic body of principles and precedents for adapting to changes without repeated congressional action.26 Moreover, the solutions in the United States, be they judicial, legislative or administrative, may differ greatly from the solutions abroad, since for a sui generis scheme of protection there is no common body of copyright or patent principles or multilateral treaty to guide the courts, legislatures, and administrative agencies in other countries.
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