:: INTEGRATED CIRCUITS

Protection of the topology of integrated circuits in Brazil

Bruno Lopes Holfinger

Even though late in complying with the Treaty on Intellectual Property in Respect of Integrated Circuits adopted at Washington on May 26, 1989 (PICI), Brazilian legislation will finally consider ways to ensure the intellectual protection of integrated circuits (IC).

The first printed circuit was invented by American electronic engineer Jack St. Clair Kilby in 1958 and patented the following year. An IC (also called a microchip) consists of a plurality of tridimensional elements in the form of a semiconductor pastille. This pastille varies in size from 0.5 to 2 cm2, containing a plurality of components ranging from transistors to passive components, connected to each other, that carry out a great variety of functions. Besides making it possible to drastically reduce the size of equipment, the advent of the IC made it feasible to achieve unquestioned technological advances in the fields of telecommunications, medicine and leisure through simple appliances and objects for common use. As a matter of curiosity, a standard home computer contains on average 8 million integrated circuits.

For its part, the topography of integrated circuits that is the subject of the protection under this law consists of a series of related images, constructed or coded through any means or form, that represents the tridimensional configuration of the layers that comprise the integrated circuit, where each image totally or partially represents the geometric forms or surface arrangements of the integrated circuit at any stage of its conception or production.

Basically, this new protection concept is situated somewhere between patent protection and copyright protection because it simultaneously is an abstract device that is loaded with original and not obvious technical concepts.

According to the Brazilian National Congress itself, the new regulations are designed both to encourage innovation by domestic producers of high technology integrated circuits who are hurt by the reality of strongly competitive international competition and the extinction of the market reserve that companies in this field of activity had enjoyed in Brazil as well as to adjust local legislation to the rules introduced by the international TRIPS treaty -- and more specifically, articles 35 to 38.

The objective of this legislation is to ensure that companies with relatively small IC manufacturing production can obtain protection and also renew themselves technologically in order to create and protect their microchips. It should also be pointed out that this law, similar to patents and industrial designs, protects patent applications from other countries, with a deadline for filing such applications assured by international treaty that is in effect in the country.

The owner of a patent issued by the Brazilian Patent and Trademark Office has its rights secured for ten years as of the initial filing date or exploitation date (as long as the time between the beginning of exploitation until the filing of the patent application does not exceed two years), and has the possibility of stopping the total or partial reproduction, importation, sale or distribution of the protected topology, except if good faith can be established, thus satisfying the conditions contained in articles 36 and 37 of TRIPS. In order to qualify for protection, the topography must be original -- that is, it has to be derived from intellectual creation and must not be something that is common or ordinary to a specialist in the field. Once the registration has been made, the patent holder may voluntarily assign its technology or license its exploitation. Non-exclusive compulsory icenses are also contemplated in order to ensure free competition so as to prevent abusive situations as defined in the antitrust legislation. This includes the lack of supply of the market in terms of price, quantity or quality as well as the cases considered as constituting national emergencies.

The bill, which has already been approved by Congress is now just awaiting publication in the Official Gazette (Diário Oficial da União), and will take effect in Brazil six months afterwards.

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