Integrated Circuit Topographies

One of the major benefits of both patent and copyright protection is the breadth of subject matter that can be covered. Utility patents can be used to provide protection for an enormous variety of inventions, and copyrights can similarly be used to protect almost any physical manifestation of creativity. This breadth is available because of how these forms of intellectual property are defined—they are defined in relatively abstract terms, focusing on such features as utility, novelty, originality, creativity, and so forth.

There are other forms of intellectual property that are defined in more concrete terms, which makes their application much more restricted. One such example is the protection afforded to integrated circuit topographies. The basic idea of such doctrines is specifically to provide protection for the structures of integrated circuits—the way in which the active elements are laid out on a chip. The protectable structures are often referred to as "mask works" because the layout on the chip corresponds to the structure of a photolithographic mask that is used during the fabrication process. Such mask works may correspond to two-dimensional or three-dimensional layouts depending on the specific structure of the chip.

Intellectual-property protection for mask works arose to try to fill a gap between the protections offered by copyright law and the protections offered by patent law. A specific layout is not clearly within the realm of patentable subject matter, but because the mask geometry has a functional nature, it is also not clearly protectable under copyright law. There may be aspects of mask works that are protectable under either doctrine, but the application is not a tidy one.

This gap-filling approach is reflected in the rights that are provided in mask works. Similar to copyright, only the owner of a mask work (or someone authorized by the owner) may reproduce the mask work. And similar to patent rights, only the owner (or someone she authorizes) may import or distribute a semiconductor chip product in which the mask work is embodied.42 One thing that is notable is that specific exceptions are provided to permit others to reverse engineer the mask work.43 This promotes a public policy in which others are encouraged to seek improvements by designing around protected intellectual property. But at the same time, no generalized permission to engage in "fair use" of a mask work is provided, making it somewhat stronger than copyright protection in this respect.

In the United States, mask-work rights are defined by the Semiconductor Chip Protection Act. The title of this act already indicates one of the restrictions on the right that may impact how it can be extended to cover certain types of nanotechnology. Specifically, protection is provided only for semiconductor chips, with the act defining a "semiconductor chip product" as the final or intermediate form of any product "having two or more layers of metallic, insulating, or semiconductor material, deposited or otherwise placed on, or etched away or otherwise removed from, a piece of semiconductor material in

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