SEMICONDUCTORS

The structure of a memory chip, of a microchip having a multilayer design or of a processor as a three-dimensional structure is referred to as topography and is applied for at the utility models office of the German Patent and Trademark Office (DPMA).

Such structures are able to be protected, particularly when they, as ASICs, are the hardware version of a software patent. A topography ("mask-work" in the USA, "integrated circuit topographies" = ICTs in Canada) is only able to be protected when it has characteristic property ("Eigenart"); a comparable qualitative obstacle far-removed from the inventive step of the utility model, without explicitly requiring novelty.

It results indirectly from the requirement of the application, without which the protection is not provided. The "topographic characteristic property" is legally defined as intellectual work which goes beyond the routine and does not produce a replica of another (known) topography. There is currently no jurisprudence regarding the level of this qualitative requirement; it is necessary to assume that there will be a person skilled in the art of semiconductor technology and to consider the purpose of the protective law which acts on the assumption of a small obstacle, but also of a small scope of protection therefor.

One example of a topography is an amplifier chip (5V, automatic gain control (AGC)) which has five layers which cannot be seen. The manufacturer is listed on the topography. This topography was registered at the DPMA under DE 202 75 032.9

Another example is a chip for bipolar, analogue and digital integrated circuits. The purpose of the circuit is not provided. This topography was registered at the DPMA under DE 22 2004 000 004.9.

LEDs on a substrate can also form a topography. This topography is registered at the DPMA under DE 22 2012 000 005.3. Its ten rectangular LED chips in a quadratic arrangement and the current-conducting contacts therebetween as well as the terminal bond pads for the two current supply lines (all ten LEDs are connected in series) can be seen at the bottom.

This topography is less complex and more clear than the examples shown above.

Nevertheless, the scope of protection thereof is to be considered to be quite narrow. HalblSchg §6 in conjunction with § 1(4) prohibits only the replication and provision of (protected) topography as such; a range of equivalents (obvious modifications of the precisely shown topography) corresponding to PatG § 14 or Art. 69 EPC appears to be lacking in terms of protection, as is Ensthaler in "Gerwerblicher Rechtsschutz und Urheberrecht", Springer, 1998, 153 relating to semiconductor protective law.

It could be questioned, for example, whether a quadratic design of the central LED in each of the two triple-rows of rectangular LEDs would still be a replication when the remaining design of the topography is identical. Figure 1a shows such a modification which as a possible "replication of the topology as such" would be a question relating to the scope of protection of the applied-for topography. It would be counterproductive if a change just in the angular position of the two conductive bond pads (designated with "+" and "-") by 10º to 30º on the carrier substrate would be a departure from the protection of the applied-for topography. The quadratic design of the central LED, in contrast, would be a departure from the replication of the applied-for "topology as such".

In a similar manner to utility models, topographies are un-examined rights. They are only examined when a request for cancellation thereof is made. A topography which does not meet the prerequisite of characteristic property ("Eigenart") is a fictitious right and no effects of protection are present from the outset (ex tunc).

The duration of a topography is a decade, actually up to 11 years.

The period of protection ends ten years after the end of the calendar year of the application date. If the topography has been applied for at the latest two years after the start of commercialisation (the non-confidential commercial use), the period lasts for ten years from the end of the year of the first commercialisation date.

If the application date without previous commercialisation is 1 January, then 11 years of protection is acquired. The application date should thus always be postponed to January or the next year.

A discussion of the prior art shows that other commercialised topographies which were made public later (and were applied for within the 2 years) have, as the prior art, the earlier commercialised topography in opposition thereto which (considered hypothetically) must have required intellectual work on the part of the person skilled in the art of semiconductors in order to create something which is more than a replica and is not routine. Thus considered, the routine, and the replica, can likewise define the novelty requirement. For the creative act which goes further, it is the intellectual work of the person skilled in the art of semiconductors, who must create something more than routine or more than a replica in order to establish the characteristic property, which remains.

Last updated 19 December 2013