PROTECTION OF SEMICONDUCTOR TOPOGRAPHY

(Speech delivered at the IPR conference held on 4th February 2006 at the National Judicial Academy Bhopal.
Summary: It talks about how designs on semiconductors are protected.)

COMPUTERS AND THE CHIP
Chips (Endnote-1) are heart and soul of a computer. They are made of semi-conductors. The properties of semiconductors were already known, but it was in the middle of the twentieth century that diodes and transistors were invented. Soon thereafter, a new technology to make diodes, transistor, and other electronic components along with electric circuit on semiconductors came into existence. It advanced rapidly. Moore predicted that 'the number of transistors on a chip doubles every year'. It is modified to every 18 months now. No wonder it led to the chip revolution and the need to protect the Intellectual Property in layout designs of the integrated circuits or topographies or mask works (Endnote-2). But before we discuss it, let's consider the technology behind it.

Binary Notations and Electronic Circuit
We feel comfortable with counting to the base of 10 digits (decimal system). Perhaps for the reason that our hands have ten fingers. In the base of 10, the ten digits are 0, 1, 2, 3, 4, 5, 6, 7, 8, and 9. All other numbers are represented by these ten digits. If we had adopted octal base (based on eight) then it would have been like 0, 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, 20 etc. The simplest system is binary system with the base of 2, there are only two digits namely, 1 and 0. The digits 1 and 0 are called bits—short for binary units. It is possible to write any number, using these two numbers. In computers eight bits are called byte. The advantage of binary system is that these two numbers can be represented in many ways, like:

• yes or no; or
• true or false; or
• a switch which is on or off; or
• if there is an electronic component capable of permitting flow of electricity in one direction in any circuit then when the electricity is flowing it can be treated as yes and when not flowing then it can be treated as no.

It is difficult for human beings to comprehend large numbers written in binary system but it is convenient for the calculating machine (mechanical or electronic) to use this notation as only two situations are contemplated. This has been made possible by the work of three mathematicians: George Boole (1815-64), Charles Babbage (1791-1871), and Alan Turing (1912-54).

Boole demonstrated that logic can be expressed in mathematical notations and gave us Boolean algebra (Symbolic logic) thus bringing logic from the sphere of Philosophy to the world of Mathematics.

Babbage conceived that a machine which can perform calculations can be used to perform any task provided its design is such that its internal parts could be employed in different ways, so that when a particular task was being tackled a unique sequence of internal activity would be set up, with each different task being tied to unique internal 'patterns of action'. All that was needed, was a way to tell the machine which patterns of action were to be employed at any one time. Babbage was much ahead of his time and in fact this is what a programme does. A program, is nothing more than a series of instructions for the computer what to do and what its components must generate in order to solve a particular problem.

Turing worked in artificial intelligence and wrote a paper in 1936 'On Computable Numbers’. It described the concept of a machine (called Turing machine) which could be adapted to any problem capable of human solution. Turing, like Babbage, realised that any problem which a human being could solve could be broken down into simple tasks and questions and can be represented by simple repetitive operations which could be carried out by a machine. He defined the concept of an algorithm for problem solving.

The two symbols, 0 and 1, correspond to an open and a closed switch respectively. This shows that programming can be represented by an electrical circuit. In fact whatever we tell the computer and whatever it seems to be telling us, is nothing but a collection of thousands or millions of switches each of which is either open or closed. The switches are affected by the data, program instructions, and what we have stored already. There is no magic; it is just lots of switches; and making computers means making lots of switches which can function in a logical way or in other words can be put into electrical circuits.

Semiconductor, Diode, Transistor and Integrated Circuit
Materials can be categorised into three categories:

1. Conductors: Electricity can pass through them easily e.g. metals
2. Insulators: Electricity cannot pass through them e.g. Rubber, Porcelain etc.
3. Semi-conductors: They are bad conductors but not as bad as a conductor.

Some semiconductors can form crystals as their structure is ordered and others cannot do so because of their amorphous or disordered structure. Silicon and Germanium are two semi-conductors that have ordered structure and can form crystals. Such semiconductors can become good conductors if some impurities or dopants (dopers) are added. This is important as this has led to the chip revolution. In order to understand it, we have to understand atomic structure.

An atom is the smallest unit of an element. It consists of three fundamental particles namely, protons (positive charge), electrons (negative charge), and neutrons (no charge). The number of protons and electrons are equal; however number of neutrons could be different.

In an atom, protons and neutrons form the nucleus and electrons revolve around the nucleus. The electrons revolve in different shells. An atom is most stable with eight electrons in its outer shell. Except in inert elements, the rest of the atoms of the elements do not have eight electrons and this is the reason that they combine with atoms of other elements to share the electrons in the outer shell. It is relevant to point out that some electrons become free and electricity is flow of the electrons.

Silicon (Atomic number 14, Atomic weight 28) and Germanium (Atomic number 32, Atomic weight 72) have four electrons in their outer shell. Let's consider what happens if we add or dope it with comparatively small number (perhaps one in a million) of atoms of another element which does not have four electrons in its outer shell.

Phosphorus has five electrons; if we dope silicon with one of these elements it will be slightly uneasy but nevertheless it will accommodate the intruders. The important effect is that each atom of impurity brings a free electron to the structure, so it becomes a conductor. Electrons are negatively charged, so such doped silicon is called n-type. Alternatively, we can also dope silicon with an element such as boron which has three electrons in its outer shell. The presence of such an atom results in what we call for the purposes of our model, a hole. This makes the doped silicon conduct electricity in the opposite sense to the n-types. Thus it is called p-type (p for positive).

Diode and Transistor
The diode is a devise which allows electrons (i.e. electric current) to flow in one direction but not in other. An n-type silicon and p-type silicon can be combined together to make a diode. It has two ends. A transistor is nothing but two diodes put together with one end in common. This makes a transistor with three ends. It can perform the functions of a diode as well as many other functions. They in fact act like switches for the computer.

Diode

Transistor

Integrated Circuit

Initially in order to make electric circuits, one had to have a board and affixed the various electronic components (transistors, resistors, capacitors, transformers etc.) on the same and then wired them according to the circuit. This was a slow, laborious process.

This was replaced by the circuit printed on the Board. Instead of soldering wires to various electronic components on a board, one began with a board made of plastic (or other non conducting material) on which one could spray a pattern of thin strips of metallic conducting material forming the circuit. One then had to insert the components and solder it at that place.

Printed Circuit Board

Around 1960, this principle began to be extended to spraying conducting materials onto parts of silicon wafers themselves. This mean that electronic components transistor, etc along with electric circuit can be made on the silicon wafers. This is how the chip revolution started: electronic component, as well as electric circuit on the silicon wafer itself. This is the topography or layout design of integrated circuit on a semiconductor. It is an intellectual property that is required to be protected under the TRIPS.

HISTORICAL
There are three kinds of different IPRs:

1. The Circuit design;
2. The technology to compress the circuit design;
3. The chip as the product which includes the circuit.

The IPRs at serial number (ii) and (iii) of the previous paragraph can be protected as patents provided they satisfy its requirements but the existing IPR laws—Patents, Copyright, Industrial Design, Trade Mark, Trade Secret—were either insufficient or unsuitable for protecting the IPR mentioned at serial number (i). The US took the initiative and was the first to provide protection by enacting an independent statute 'the Semiconductor Chip Protection Act 1984' (the SCP Act). Brooktree Corporation Vs AMD 977 F.2d 1555 explains the reasons for enacting this law as follows

'[It] arose from concerns that existing intellectual property laws did not provide adequate protection of proprietary rights in semiconductor chips that had been designed to perform a particular function. The Act, enacted after extensive congressional consideration and hearings over several years, adopted relevant aspects of existing intellectual property law, but for the most part created a new law, specifically adapted to the protection of design layouts of semiconductor chips.'

As the US was prepared to recognise the claims of foreign designers of semiconductor chips only if the country of their origin recognised the rights of US chip designers. Japan passed a similar legislation in 1985 and EC also issued a directive - 7/54/EFC of 16 Dec. 1986 on the legal protection of semiconductor products, OJL 24/36 - requiring the member states to protect semiconductor topographies. In UK it was done by the Semiconductor (Protection of Topography) Regulations 1987, which was later substituted by the Design Right (Semiconductor Topographies) Regulations 1989.

The WIPO convened a conference and a treaty on Intellectual property in respect of Integrated circuits (the IPIC Treaty) was adopted in Washington on May 26, 1989. It gave liberty (Article 4) to the contracting party to implement the obligations by

• Independent law; or
• Its law on copyright, patents, utility models, industrial designs, unfair competition or any other law; or
• A combination of those laws.

The IPIC treaty was signed by many countries including India but it did not take off as the US and Japan did not sign it. They were not happy with some of its provisions, particularly those relating to compulsory licenses and acquisition of products containing infringing semiconductors (See Carlos Correa, Intellectual Property in the Field of Integrated Circuits: Implications for Developing Countries, World Competition, vol.14, No.2, Geneva 1990). These areas were particularly dealt with during the TRIPS Agreement negotiations. TRIPS partly adopted the IPIC treaty. Article 35 of the TRIPS provides for protection of layout designs (Topographies) of integrated circuits in accordance with Article 2-7 {except Article 6(3) dealing with compulsory licensing} 12 and 16(3) of the IPIC treaty and it lays additional obligations under Article 36 and 37.

THE SEMICONDUCTOR INTEGRATED CIRCUIT LAYOUT DESIGN ACT 2000
India has enacted the Semiconductor Integrated Circuits Layout Design Act 2000 (the Act) (Endnote-3) in pursuance of its obligations under the TRIPS. The Semiconductor Integrated Circuits Layout – Design Rules 2001 have also been framed.

Section 7 of the Act provides that the layout design can be registered if it is:

• Original; and
• Not commercially exploited anywhere in India or in a Convention Country; and
• Inherently distinctive; and
• Inherently capable of being distinguishable from any other registered lay out design.

The layout design is treated as original if,

• it results out of creator's own intellectual efforts; and
• is not commonly known to the creators of layout design and manufactures of semiconductor integrated circuits at the time of creation.

Layout designs are treated as original even if a layout design consists of combination of elements and interconnections commonly known to creators of layout-design, provided such a combination as a whole is result of creator's own intellectual efforts.

Layout design is treated not to be commercially exploited if it has been so exploited within two years of filing the application for registration.

The protection under the Act is for a period of 10 years from the first commercial exploitation in any country or date of application for registration whichever is earlier (Section 15).

Chapter IV of the Act is titled as Effect of Registration. Section 16 provides that a person shall not be entitled to institute any proceeding to prevent, or to recover damages for the infringement of an unregistered layout-design. This section should be seen in the light of section 7 of the Act, which permits the filing of application for registration of any layout design within two years of its commercial exploit ion. In such an event, in case of grant of registration the registration starts from the date of first exploitation. In view of this the proprietor of unregistered layout design which is later on registered do have rights.

Section 17 of the Act is titled as Rights conferred by registration and in case of valid registered layout design, it confers upon the registered proprietor the exclusive right to the use of the layout design and to obtain relief in respect of infringement. It is also clarified that this right is available even if the layout design is not incorporated in any article.

Infringement
Section 18 of the Act is titled as Infringement of layout-design and provides what constitutes an infringement of the registered layout design. It also explains as to what does not amount to infringement and when reverse engineering is permissible. Sub section (1) of section 18 provides that a person infringes a registered layout design in case he without any written consent:

1. Reproduces any layout design in its entirety or in part, which is not original within the meaning of sub section (2) of section 7 of the Act.
2. Imports, sells or distributes for commercial purpose a registered layout design or a semiconductor integrated circuit incorporating such layout design or an article in which a semiconductor integrated circuit containing such a layout design is incorporated.

The remaining sub sections namely sub sections (2) to (8) of section 18 of the Act provide what will not amount to infringement of the registered layout design. These provisions are in conformity with the TRIPS.

Reverse Engineering
Sub sections (2) to (4) of section 18 {Section 18(2) to 18(4)} of the Act broadly deal with reverse engineering which is permitted under Article 6(2) of the IPIC treaty. These two sub sections provide that reproduction of registered lay out design for the purposes of scientific evaluation, analysis, research or teaching shall not constitute infringement. It is further clarified that if, on the basis of scientific evaluation or analysis (reverse engineering), any other original layout design {as contemplated under section 7(2)} is created then this later layout design will not be an infringement of that registered layout design on which scientific evaluation, or analysis was done. Apart from it, if this new layout design is registered then it has all rights like a registered layout design.

Other Acts — Without Authorisation of the Proprietor.
Sub sections (5) and (6) of section 18 {section 18(5) and 18(6)} of the Act protect sale and distribution of infringing integrated circuits acquired innocently. They also provide payment of royalty to the proprietor of registered layout design if such a person continues to perform such acts in respect to stock on hand or ordered before such time. Royalty is to be determined by the appellate board constituted under the Act. These provisions have been enacted in pursuance of Article 37(1) of the TRIPS and Article 6(4) of the IPIC treaty.

Exhaustion and other Protection
Sub section (7) of section 18 {Section 18(7)} of the Act provide exhaustion of rights and protects a person who performs any act mentioned in section 18(1)(b) of the Act with the consent of the registered proprietor. This is in pursuance of Article 6(5) of the IPIC treaty.

Section 18(8) of the Act also protects a person who by application of independent intellect has created a layout design which is identical to registered layout design. This is in pursuance of Article 6(2) (c) of the IPIC treaty.

While we are talking about what does not constitute infringement, it will be a good idea to discuss about implied warranty under section 71 of the Act. It states that the seller, unless there is contract to the contrary, is deemed to warrant that the registered layout design or the layout design incorporated is genuine.

The rights conferred under the Act can also be assigned and this is provided under chapter V of the Act. There can be registered users of the layout design and this is provided under chapter VI of the Act.

Appellate Board
Chapter VIII of the Act establishes a Layout Design Appellate Board. The Board has been given the following jurisdiction to determine:

1. The Board can determine the royalty under section 18(5) of the Act {Section 40(1) of the Act} (Article 37(1) of the TRIPS).
2. The Board can cancel registration of any layout design if it could not be registered under section 7 of the Act {Section 41 (1) (a) of the Act}.
3. The Board can also cancel assignment or transmission of a registration in case it is contrary to any provision of law {Section 41(1)(b) of the Act}.
4. The registration of layout design is done by the registrar under chapter III of the Act. The registrar is also to register any registered user of a layout design under chapter VI of the Act. Section 42 of the Act provides appeals against any decision of the registrar under the Act and the Rules.
5. Section 51 of the Act empowers the Board to permit the government or any other person authorised by the government in this behalf to use any registered layout design on the conditions mentioned therein {Article 37(2) of the TRIPS}.

Offences, Penalties and Procedure
Chapter IX provides offences penalty and procedure. It is relevant to point out that Article 61 of TRIPS mandates criminal prosecution for Trade Mark and copyright violations however it neither mandates nor prohibits criminal prosecution in other cases. However we have chosen to provide criminal prosecution for infringement of registered layout design.

Section 56 of the Act provides penalty for infringement of registered layout design. It provides imprisonment for a term which may extent to three years or with minimum fine of Rs. Fifty thousand rupees which can be extended to ten lakh rupees or with both for contravening any of the provisions of section 18 of the Act. Sections 61 and 62 of the Act provide exemptions and defences in the criminal prosecution.

Section 60 provides for forfeiture of the goods. It states that the court convicting a person under section 56 of the Act may forfeit the goods and things in relation to which the offence was committed.

ADVANTAGES AND DISADVANTAGES
The IPIC Treaty provides for protection of layout designs by independent law or by existing IPR law or by both. This was accepted in the TRIPS. We have enacted independent law but this does not mean that layout design cannot be protected under the traditional forms of protection (e.g. copyright, patents). It is possible to protect it under any other IPR law (like design or patent) provided it satisfies the conditions under the enactments protecting those IPRs.

This protection under the Act is independent of the operation of the circuit developed on the basis of the topography. The Act does not cover any functions but merely the layout design as a depiction of possible functions. It is possible that the same functionality can be achieved by an altered layout design without infringing the registered layout design. This shows that the protection is more closely related to design protection rather than to the patent protection. Perhaps due to this reason, the number of registered layout designs are relatively less and they are being protected more as patent protection by incorporating it in the end result. However there are some advantages in registering a layout design:

• It has a low overall cost compared to a patent/utility design.
• It prevents anyone else from obtaining patent.
• It is a cost-effective way of protecting it from being copied identically or reverse engineering except to the extent allowed.

CONCLUSION
Very little litigation has taken place regarding protection of the integrated circuits (Endnote-4). This has led many to say that it is a solution in search of problem (Endnote-5) and others to say that it is solution that has solved almost all problems.

Appendix-1

(The relevant provision of the TRIPS are as follows)

Article 31
Other Use Without Authorization of the Right Holder
Where the law of a Member allows for other use (Endnote-6) of the subject matter of a patent without the authorization of the right holder, including use by the government or third parties authorized by the government, the following provisions shall be respected:
(a) authorization of such use shall be considered on its individual merits;
(b) such use may only be permitted if, prior to such use, the proposed user has made efforts to obtain authorization from the right holder on reasonable commercial terms and conditions and that such efforts have not been successful within a reasonable period of time. This requirement may be waived by a Member in the case of a national emergency or other circumstances of extreme urgency or in cases of public non-commercial use. In situations of national emergency or other circumstances of extreme urgency, the right holder shall, nevertheless, be notified as soon as reasonably practicable. In the case of public non-commercial use, where the government or contractor, without making a patent search, knows or has demonstrable grounds to know that a valid patent is or will be used by or for the government, the right holder shall be informed promptly;
(c) the scope and duration of such use shall be limited to the purpose for which it was authorized, and in the case of semi-conductor technology shall only be for public non-commercial use or to remedy a practice determined after judicial or administrative process to be anti-competitive;
(d) such use shall be non-exclusive;
(e) such use shall be non-assignable, except with that part of the enterprise or goodwill which enjoys such use;
(f) any such use shall be authorized predominantly for the supply of the domestic market of the Member authorizing such use;
(g) authorization for such use shall be liable, subject to adequate protection of the legitimate interests of the persons so authorized, to be terminated if and when the circumstances which led to it cease to exist and are unlikely to recur. The competent authority shall have the authority to review, upon motivated request, the continued existence of these circumstances;
(h) the right holder shall be paid adequate remuneration in the circumstances of each case, taking into account the economic value of the authorization;
(i) the legal validity of any decision relating to the authorization of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;
(j) any decision relating to the remuneration provided in respect of such use shall be subject to judicial review or other independent review by a distinct higher authority in that Member;
(k) Members are not obliged to apply the conditions set forth in subparagraphs (b) and (f) where such use is permitted to remedy a practice determined after judicial or administrative process to be anti-competitive. The need to correct anti-competitive practices may be taken into account in determining the amount of remuneration in such cases. Competent authorities shall have the authority to refuse termination of authorization if and when the conditions which led to such authorization are likely to recur;
...


SECTION 6: LAYOUT-DESIGNS (TOPOGRAPHIES) OF INTEGRATED CIRCUITS

Article 35
Relation to the IPIC Treaty
Members agree to provide protection to the layout-designs (topographies) of integrated circuits (referred to in this Agreement as "layout-designs") in accordance with Articles 2 through 7 (other than paragraph 3 of Article 6), Article 12 and paragraph 3 of Article 16 of the Treaty on Intellectual Property in Respect of Integrated Circuits and, in addition, to comply with the following provisions.

Article 36
Scope of the Protection
Subject to the provisions of paragraph 1 of Article 37, Members shall consider unlawful the following acts if performed without the authorization of the right holder: (Endnote-7) importing, selling, or otherwise distributing for commercial purposes a protected layout-design, an integrated circuit in which a protected layout-design is incorporated, or an article incorporating such an integrated circuit only in so far as it continues to contain an unlawfully reproduced layout-design.

Article 37
Acts Not Requiring the Authorization of the Right Holder
1. Notwithstanding Article 36, no Member shall consider unlawful the performance of any of the acts referred to in that Article in respect of an integrated circuit incorporating an unlawfully reproduced layout-design or any article incorporating such an integrated circuit where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the integrated circuit or article incorporating such an integrated circuit, that it incorporated an unlawfully reproduced layout-design. Members shall provide that, after the time that such person has received sufficient notice that the layout-design was unlawfully reproduced, that person may perform any of the acts with respect to the stock on hand or ordered before such time, but shall be liable to pay to the right holder a sum equivalent to a reasonable royalty such as would be payable under a freely negotiated licence in respect of such a layout-design.
2. The conditions set out in subparagraphs (a) through (k) of Article 31 shall apply mutatis mutandis in the event of any non-voluntary licensing of a layout-design or of its use by or for the government without the authorization of the right holder.

Article 38
Term of Protection
1. In Members requiring registration as a condition of protection, the term of protection of layout-designs shall not end before the expiration of a period of 10 years counted from the date of filing an application for registration or from the first commercial exploitation wherever in the world it occurs.
2. In Members not requiring registration as a condition for protection, layout-designs shall be protected for a term of no less than 10 years from the date of the first commercial exploitation wherever in the world it occurs.
3. Notwithstanding paragraphs 1 and 2, a Member may provide that protection shall lapse 15 years after the creation of the layout-design.

SECTION 5: CRIMINAL PROCEDURES
Article 61
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.

Appendix-2
(The relevant provisions of the IPIC treaty are as follows)

Article-2
Definitions
For the purposes of this Treaty:
(i) "integrated circuit" means a product, in its final form or an intermediate form, in which the elements, at least one of which is an active element, and some or all of the interconnections are integrally formed in and/or on a piece of material and which is intended to perform an electronic function,
(ii) "layout-design (topography)" means the three-dimensional disposition, however expressed, of the elements, at least one of which is an active element, and of some or all of the interconnections of an integrated circuit, or such a three-dimensional disposition prepared for an integrated circuit intended for manufacture,
(iii) "holder of the right" means the natural person who, or the legal entity which, according to the applicable law, is to be regarded as the beneficiary of the protection referred to in Article 6,
(iv) "protected layout-design (topography)" means a layout-design (topography) in respect of which the conditions of protection referred to in this Treaty are fulfilled,
(v) "Contracting Party" means a State, or an Intergovernmental Organization meeting the requirements of item (x), party to this Treaty,
(vi) "territory of a Contracting Party" means, where the Contracting Party is a State, the territory of that State and, where the Contracting Party is an Intergovernmental Organization, the territory in which the constituting treaty of that Intergovernmental Organization applies,
(vii) "Union" means the Union referred to in Article 1,
(viii) "Assembly" means the Assembly referred to in Article 9,
(ix) "Director General" means the Director General of the World Intellectual Property Organization,
(x) "Intergovernmental Organization" means an organization constituted by, and composed of, States of any region of the world, which has competence in respect of matters governed by this Treaty, has its own legislation providing for intellectual property protection in respect of layout-designs (topographies) and binding on all its member States, and has been duly authorized, in accordance with its internal procedures, to sign, ratify, accept, approve or accede to this Treaty.

Article-3
The Subject Matter of the Treaty
(1) [Obligation to Protect Layout-Designs (Topographies)]
(a) Each Contracting Party shall have the obligation to secure, throughout its territory, intellectual property protection in respect of layout-designs (topographies) in accordance with this Treaty. It shall, in particular, secure adequate measures to ensure the prevention of acts considered unlawful under Article 6 and appropriate legal remedies where such acts have been committed.
(b) The right of the holder of the right in respect of an integrated circuit applies whether or not the integrated circuit is incorporated in an article.
(c) Notwithstanding Article 2(i), any Contracting Party whose law limits the protection of layout-designs (topographies) to layout-designs (topographies) of semiconductor integrated circuits shall be free to apply that limitation as long as its law contains such limitation.
(2) [Requirement of Originality]
(a) The obligation referred to in paragraph (1)(a) shall apply to layout-designs (topographies) that are original in the sense that they are the result of their creators' own intellectual effort and are not commonplace among creators of layout-designs (topographies) and manufacturers of integrated circuits at the time of their creation.
(b) A layout-design (topography) that consists of a combination of elements and interconnections that are commonplace shall be protected only if the combination, taken as a whole, fulfills the conditions referred to in subparagraph (a).

Article-4
The Legal Form of the Protection
Each Contracting Party shall be free to implement its obligations under this Treaty through a special law on layout-designs (topographies) or its law on copyright, patents, utility models, industrial designs, unfair competition or any other law or a combination of any of those laws.

Article-5
National Treatment
(1) [National Treatment]
Subject to compliance with its obligation referred to in Article 3(1)(a), each Contracting Party shall, in respect of the intellectual property protection of layout-designs (topographies), accord, within its territory,
(i) to natural persons who are nationals of, or are domiciled in the territory of, any of the other Contracting Parties, and
(ii) to legal entities which or natural persons who, in the territory of any of the other Contracting Parties, have a real and effective establishment for the creation of layout-designs (topographies) or the production of integrated circuits,
the same treatment that it accords to its own nationals.
(2) [Agents, Addresses for Service, Court Proceedings]
Notwithstanding paragraph (1), any Contracting Party is free not to apply national treatment as far as any obligations to appoint an agent or to designate an address for service are concerned or as far as the special rules applicable to foreigners in court proceedings are concerned.
(3) [Application of Paragraphs (1) and (2) to Intergovernmental Organizations]
Where the Contracting Party is an Intergovernmental Organization, "nationals" in paragraph (1) means nationals of any of the States members of that Organization.

Article-6
The Scope of the Protection
(1) [Acts Requiring the Authorization of the Holder of the Right]
(a) Any Contracting Party shall consider unlawful the following acts if performed without the authorization of the holder of the right:
(i) the act of reproducing, whether by incorporation in an integrated circuit or otherwise, a protected layout-design (topography) in its entirety or any part thereof, except the act of reproducing any part that does not comply with the requirement of originality referred to in Article 3(2),
(ii) the act of importing, selling or otherwise distributing for commercial purposes a protected layout-design (topography) or an integrated circuit in which a protected layout-design (topography) is incorporated.
(b) Any Contracting Party shall be free to consider unlawful also acts other than those specified in subparagraph (a) if performed without the authorization of the holder of the right.
(2) [Acts Not Requiring the Authorization of the Holder of the Right]
(a) Notwithstanding paragraph (1), no Contracting Party shall consider unlawful the performance, without the authorization of the holder of the right, of the act of reproduction referred to in paragraph (1)(a)(i) where that act is performed by a third party for private purposes or for the sole purpose of evaluation, analysis, research or teaching.
(b) Where the third party referred to in subparagraph (a), on the basis of evaluation or analysis of the protected layout-design (topography) ("the first layout-design (topography)"), creates a layout-design (topography) complying with the requirement of originality referred to in Article 3(2) ("the second layout-design (topography)"), that third party may incorporate the second layout-design (topography) in an integrated circuit or perform any of the acts referred to in paragraph (1) in respect of the second layout-design (topography) without being regarded as infringing the rights of the holder of the right in the first layout-design (topography).
(c) The holder of the right may not exercise his right in respect of an identical original layout-design (topography) that was independently created by a third party.
(3) [Measures Concerning Use Without the Consent of the Holder of the Right]
(a) Notwithstanding paragraph (1), any Contracting Party may, in its legislation, provide for the possibility of its executive or judicial authority granting a non-exclusive license, in circumstances that are not ordinary, for the performance of any of the acts referred to in paragraph (1) by a third party without the authorization of the holder of the right ("non-voluntary license"), after unsuccessful efforts, made by the said third party in line with normal commercial practices, to obtain such authorization, where the granting of the non-voluntary license is found, by the granting authority, to be necessary to safeguard a national purpose deemed to be vital by that authority; the non-voluntary license shall be available for exploitation only in the territory of that country and shall be subject to the payment of an equitable remuneration by the third party to the holder of the right.
(b) The provisions of this Treaty shall not affect the freedom of any Contracting Party to apply measures, including the granting, after a formal proceeding by its executive or judicial authority, of a non-voluntary license, in application of its laws in order to secure free competition and to prevent abuses by the holder of the right.
(c) The granting of any non-voluntary license referred to in subparagraph (a) or subparagraph (b) shall be subject to judicial review. Any non-voluntary license referred to in subparagraph (a) shall be revoked when the conditions referred to in that subparagraph cease to exist.
(4) [Sale and Distribution of Infringing Integrated Circuits Acquired Innocently]
Notwithstanding paragraph (1)(a)(ii), no Contracting Party shall be obliged to consider unlawful the performance of any of the acts referred to in that paragraph in respect of an integrated circuit incorporating an unlawfully reproduced layout-design (topography) where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the said integrated circuit, that it incorporates an unlawfully reproduced layout-design (topography).
(5) [Exhaustion of Rights]
Notwithstanding paragraph (1)(a)(ii), any Contracting Party may consider lawful the performance, without the authorization of the holder of the right, of any of the acts referred to in that paragraph where the act is performed in respect of a protected layout-design (topography), or in respect of an integrated circuit in which such a layout-design (topography) is incorporated, that has been put on the market by, or with the consent of, the holder of the right.

Article-7
Exploitation; Registration, Disclosure
(1) [Faculty to Require Exploitation]
Any Contracting Party shall be free not to protect a layout-design (topography) until it has been ordinarily commercially exploited, separately or as incorporated in an integrated circuit, somewhere in the world.
(2) [Faculty to Require Registration; Disclosure]
(a) Any Contracting Party shall be free not to protect a layout-design (topography) until the layout-design (topography) has been the subject of an application for registration, filed in due form with the competent public authority, or of a registration with that authority; it may be required that the application be accompanied by the filing of a copy or drawing of the layout-design (topography) and, where the integrated circuit has been commercially exploited, of a sample of that integrated circuit, along with information defining the electronic function which the integrated circuit is intended to perform; however, the applicant may exclude such parts of the copy or drawing that relate to the manner of manufacture of the integrated circuit, provided that the parts submitted are sufficient to allow the identification of the layout-design (topography).
(b) Where the filing of an application for registration according to subparagraph (a) is required, the Contracting Party may require that such filing be effected within a certain period of time from the date on which the holder of the right first exploits ordinarily commercially anywhere in the world the layout-design (topography) of an integrated circuit; such period shall not be less than two years counted from the said date.
(c) Registration under subparagraph (a) may be subject to the payment of a fee.
...

Article-12
Safeguard of Paris and Berne Conventions
This Treaty shall not affect the obligations that any Contracting Party may have under the Paris Convention for the Protection of Industrial Property or the Berne Convention for the Protection of Literary and Artistic Works.
..

Article-16
Entry Into Force of the Treaty
...
(3)[Protection of Layout-Designs (Topographies) Existing at Time of Entry Into Force]
Any Contracting Party shall have the right not to apply this Treaty to any layout-design (topography) that exists at the time this Treaty enters into force in respect of that Contracting Party, provided that this provision does not affect any protection that such layout-design (topography) may, at that time, enjoy in the territory of that Contracting Party by virtue of international obligations other than those resulting from this Treaty or the legislation of the said Contracting Party.

Endnote-1: The following books are easy to understand and provide the historical background as well as explain the science behind the chip technology:
(i) The Chip by TR Reid
(ii) The Myth of the Micro by Rodney Dale and Ian Wlliamson
(iii) The Making of the Micro: A History of the Computers by Cristopher Evans

Endnote-2: This was called 'mask works' due to masking technique which is one of the methods for producing circuitry on the chip surface. This was explained in Brooktree Vs AMD 977 F.2d 1555
'Chip design layouts embody the selection and configuration of electrical components and connections in order to achieve the desired electronic functions. The electrical elements are configured in three dimensions, and are built up in layers by means of a series of "masks" whereby, using photographic depositing and etching techniques, layers of metallic, insulating, and semiconductor material are deposited in the desired pattern on a wafer of silicon. This set of masks is called a "mask work", and is part of the semiconductor chip product.'

Endnote-3: The Act received the assent of the President on 4.9.2000 and it was published on the same day. Section 3 and 5 have been enforced by Notification dt. 12.2.2005 S.O. 278(E) from 1.5.2004. Semiconductor Integrated Circuits Layout Design Registry (SICLDR) has been established by Notification dt. 12.2.2004 S.O. (E) 279 wef 1.5.2004. Registrar has also been appointed by notification dt. 12.2.2004 S.O. 277(E). However rest of the Act has not been enforced.

Endnote-4: The legal controversies relating to semiconductors do not seem to relate to the layout-designs as protected by the ICIP Treaty and the TRIPS Agreement, but to patents covering certain aspects of semiconductor technology. Patent protection in the field of the manufacture of integrated circuits is important. Literally thousands of patents have been granted in this field, and in general it is not possible to undertake semiconductor production by licensing technology from a single firm. Moreover, a few large firms control substantial blocks of patents and hence exercise considerable power over the terms on which technology is available.

Endnote-5: Daniel Siegel and Ronald Laurie, /Beyond microcode: Alloy v. Ultratek. The first attempt to//extend copyright protection to computer hardware/, The Computer Lawyer, vol. 6, No. 4, April 1989, p.14, who described the SCPA as “a solution in search of a problem”. In the USA only one case /Brooktree Corp. v. Advanced Micro Devices Inc /(977 F2d. 1555, Fed. Circ. 1992) – is reported as litigated under the SCPA (see Mark Lemley; Peter Menell; Robert Merges and Pamela Samuelson, /Software and Internet Law/, Aspen Law & Business, New York)

Endnote-6: Other use' refers to use other than that allowed under Article 30.

Endnote-1: The term 'right holder' in this Section shall be understood as having the same meaning as the term "holder of the right" in the IPIC Treaty.