Semiconductor topography

A semiconductor product topography is the three-dimensional pattern of the layers making up an integrated circuit, that is, the layout of its elements and their interconnections. It benefits from a specific industrial property right, governed by Articles L. 622-1 et seq. of the French Intellectual Property Code pursuant to Directive 87/54/EEC, which protects the effort involved in designing the circuit independently of patents and copyright. The right arises from a filing with INPI.

Conditions of protection

A topography is protectable only if it is not commonplace in the sector and if it results from its creator’s own intellectual effort. A combination of commonplace elements remains protectable where the combination as a whole is not itself commonplace. The filing may not be made more than two years after the first commercial exploitation of the topography, nor more than fifteen years after its first fixation or encoding if it has never been exploited. The employer owns topographies created by an employee in the course of his or her duties, under a regime close to that of employee inventions.

Scope of the right

The holder may prohibit the reproduction of the protected topography and the commercial exploitation, or the importation for that purpose, of a reproduction or of a semiconductor product incorporating it. The term is ten years from the end of the calendar year of the filing or of the first commercial exploitation, if earlier. Protection extends neither to the concepts, processes or information embodied in the topography, which may fall within patent law or trade secret law, nor to the idea underlying the circuit architecture.

Limits and exceptions

The right does not allow the holder to prohibit reproduction for the purposes of evaluation, analysis or teaching, nor the creation, on the basis of that analysis, of a distinct topography which may itself be protected. Reverse engineering is thus expressly permitted, which distinguishes this regime from patent law. The right is also exhausted by the first placing of the product on the market in the Union with the holder’s consent. Lastly, a good faith purchaser of an infringing product may continue its commercial exploitation against payment of compensation, from the time it becomes aware of the infringement.

Litigation

Infringement of the right falls within the exclusive jurisdiction of the judicial courts, and opens the way to the saisie-contrefaçon procedure, to injunctions and to damages. Litigation is rare in France, as the protection of integrated circuits is in practice secured through patents and secrecy, but the title remains useful against slavish copies of imported components.

Key points

A semiconductor topography is protected by a filing with INPI, for ten years, provided it is not commonplace and results from an intellectual effort. The right prohibits the reproduction and commercial exploitation of copies, but allows analysis and reverse engineering. Check compliance with the filing deadline of two years after first commercial exploitation, and combine this title with patents and trade secrets for complete protection of the circuit.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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