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Controversy in IC reverse analysis

Latest update time：2015-02-23

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Reverse analysis is a controversial technology in the integrated circuit industry . Its controversy mainly stems from the fact that improper use of reverse analysis technology may infringe intellectual property rights. However, in fact, reverse analysis technology is widely used abroad as a technology to protect the intellectual property rights of integrated circuits. Integrated circuit intellectual property rights Integrated circuit intellectual property rights mainly include layout design rights, patent rights, copyrights and trade secret rights, among which the most important are layout design rights and patent rights. Integrated circuit layout design rights (1) Layout design rights are a special type of intellectual property rights. As a new member of the intellectual property family, layout design is a new type of protected object. It has both similarities and differences with the objects protected by copyright and patent rights. Compared with copyright, it has the characteristics of copyright reproducibility, and at the same time has the characteristics of industrial applicability that copyright does not involve. Compared with patent rights, although layout design has many characteristics of patent rights, layout design does not require and is difficult to meet the requirements of patent novelty and creativity. Therefore, layout design rights are a special type of intellectual property rights that are different from copyright and patent rights. They require special laws to protect them . The "Regulations on the Protection of Integrated Circuit Layouts" promulgated and implemented in China in 2001 is a law established for integrated circuit layout designs. The subject of layout design refers to the exclusive right holder or right holder who obtains the layout design in accordance with the law, and its object is the three-dimensional layout design of the integrated circuit. (2) Layout design rights are a type of right generated through registration . The generation of integrated circuit layout design rights is different from copyright. Copyright is automatically effective from the date of completion of the work, without the need for application. It is also not as strict as patent rights, which must be applied for, preliminary and substantive examinations, and approved by the competent authority before it can take effect. Layout design rights are usually generated through registration. Article 8 of China's "Regulations on the Protection of Integrated Circuit Layouts" clearly stipulates: "The exclusive right to layout design is generated through registration by the intellectual property administrative department of the State Council. Unregistered layout designs are not protected by these regulations." At the same time, Article 17 stipulates that "if a layout design fails to apply for registration with the intellectual property administrative department of the State Council within two years from the date of its first commercial use anywhere in the world, the intellectual property administrative department of the State Council will no longer register it." (3) Contents of exclusive rights to layout designs How to define the content of exclusive rights to layout designs is the core issue of layout design protection legislation, and different countries have different practices on this issue. Based on the actual protection of layout designs, China has determined two exclusive rights to layout designs, the right of reproduction and the right of commercial use, in accordance with the provisions of the Washington Treaty and the TRIPS Agreement. (4) Restrictions on exclusive rights to layout designs The protection of integrated circuit layout designs should take into account the interests of creators and investors, as well as the benefits of the entire society, to achieve a balance between the interests of the right holder and the interests of the entire society. Therefore, the exclusive rights granted to the right holder cannot be absolute monopoly rights, nor can they be unlimited eternal rights. The Washington Treaty and the laws of various countries have imposed many restrictions on the exclusive rights to integrated circuit layout designs. In addition to time and protection scope restrictions, fair use is also stipulated. China has imposed the following restrictions on the exclusive rights to layout designs:

Fair use. Article 23 of the Regulations provides that the following acts may be performed without the permission of the layout-design right holder and without paying remuneration to him: "(i) copying a protected layout-design for personal purposes or purely for non-commercial purposes such as evaluation, analysis, research, and teaching; (ii) creating an original layout-design based on the analysis and research of a protected layout-design; (iii) copying or commercially exploiting a layout-design that is identical to a protected layout-design that one has independently created."
Exhaustion of rights. Article 24 of the Regulations provides that "after a protected layout-design, an integrated circuit containing such a layout-design, or an article containing such an integrated circuit is put on the market by the layout-design right holder or with his permission, others may commercially exploit it again without the permission of the layout-design right holder and without paying remuneration to him."
Good faith use. Article 25 of the Regulations provides that "when obtaining an integrated circuit containing a protected layout-design or an article containing such an integrated circuit, if one does not know or have no reasonable reason to know that it contains an illegally copied layout-design, and yet commercially exploits it, it shall not be deemed as infringement."

Integrated Circuit Patent Rights
Patent rights (referred to as "patents") refer to the patent rights enjoyed by the patentee for inventions and creations, that is, the state grants the inventor or his successor the right to exclusively use his invention and creations for a certain period of time in accordance with the law. According to the provisions of the Patent Law, inventions and creations include three types: inventions, utility models and designs. For integrated circuits, there are usually only invention patents, while utility model and design patents are not suitable for integrated circuits.
Since the conditions, right generation, right content and right restrictions of integrated circuit patent rights are exactly the same as other patent rights, they will not be repeated here.

Comparison of integrated circuit layout design rights and patent rights for integrated circuit protection
According to the requirements of the Patent Law, patents must have novelty and creativity, which is manifested as non-obviousness. Layout design is usually composed of existing and mature layout structures according to the requirements of the process line. It is difficult to meet the requirements of novelty and creativity, and it does not meet the standard of non-obviousness. Therefore, from the perspective of the level of protection of integrated circuits, the protection level of patent rights is higher than that of layout design rights.
From the perspective of the content of protection, layout design is more similar to copyright, which only protects the form of expression of ideas, not the ideas themselves. The content of patent protection is not only the specific implementation method of a certain technical solution, but also can be extended to the technical solution itself. Therefore, the content of patent protection is the design idea itself.
From the perspective of the practical effect of protection, patent rights are obviously better than layout design rights. It has been nearly 30 years since the birth of the integrated circuit layout design protection system, and it has been 10 years since the promulgation of China's "Regulations on the Protection of Integrated Circuit Layout Designs". So far, the number of cases arising from infringement of layout designs in various countries is very small compared with other intellectual property cases such as infringement of patent rights and copyrights. Even in the United States, a country with a large number of litigation, there are only a few cases. Therefore, it is difficult to say that semiconductor protection is playing an important role worldwide. The reason for this phenomenon is directly related to the rapid replacement of integrated circuits. The commercial life of an integrated circuit product is usually only one or two years or even a few months. Since the protective effect of layout design rights will gradually disappear with the replacement of products, it is becoming increasingly unrealistic to rely on layout design for product protection under such a high replacement speed. Patents as a means of protecting design ideas have become the main way to protect the intellectual property rights of integrated circuits.

The legality of reverse analysis
The question of "whether reverse analysis is legal" is often raised. In fact, the legality of reverse analysis is beyond doubt.
The United States is the birthplace of the integrated circuit industry, and its history of reverse engineering is almost as long as that of the integrated circuit industry. The discussion on the legality of reverse analysis in the industry led to the birth of the Semiconductor Chip Protection Act of 1984 (SCPA). Section 906 of the SCPA Act and its judicial interpretations clearly define the legality of reverse engineering. The
SCPA Act of the United States has in fact become a reference for other countries to formulate relevant laws. Article 23 of Chapter 4 of the Regulations on the Protection of Integrated Circuit Layouts promulgated and implemented by China in 2001 states: "If a party reproduces a protected layout design for personal purposes or for the purpose of evaluation, analysis, research, teaching, etc., and makes an original layout design based on the above, it may do so without the permission of the layout design right holder and without paying him any remuneration."
The recognition of reverse engineering of integrated circuits by laws of various countries is actually to make reverse engineering an exception to the exclusive right of layout design. This is not only an affirmation of the industry's usual practice, but also a need for the healthy development of the industry. The expression of ideas in integrated circuit layout design cannot be as arbitrary as the creation of works. It is restricted by many factors such as technology, process, and materials. The expression of ideas is very limited. The protection of such limited expression of ideas will inevitably lead to the monopoly of ideas, which is very unfavorable to the healthy development of the industry. Therefore, allowing reverse engineering under certain conditions is not only a restriction on the reproduction right of layout design, but also a means to encourage technological progress.
The provisions of layout design protection in various countries on reverse engineering are to allow and encourage the use of reverse engineering means to dissect, analyze and understand the design ideas and design methods of other people's products in order to design compatible products, or make further improvements on the basis of other people's products, so as to manufacture more technologically advanced integrated circuit circuits. In this sense, reverse engineering plays at least two roles. One is to promote market competition. In the integrated circuit industry, reverse engineering is called the "second source" of products, that is, competitors can manufacture chips with the same functionality and compatibility through reverse engineering, giving the market and consumers more choices. Allowing and encouraging reverse engineering and promoting the formation of second sources can obviously promote market competition. Second, it promotes the development of integrated circuit technology. When competitors reverse engineer other people's products, it is not to copy other people's mask works, but to create more advanced integrated circuit products based on analysis and research. This actually encourages competitors to engage in technological innovation based on existing products, thereby promoting the continuous advancement of integrated circuit technology.
Of course, if the integrated circuit product obtained through reverse engineering is very similar to the original product in layout, it may infringe the layout design rights of the original product. However, similarity is a very vague concept. In the judicial practice of the United States, it is generally considered that the same part of the layout exceeds 70% and is considered to be an infringement. Even so, the identification of "same part" is still a complex issue.
In today's popular SoC design, sometimes the layout similarity of a certain IP core is very high, but the proportion of the IP core in the entire chip is not high. Therefore, some manufacturers also advocate that the protection of the layout design rights of the chip in the 1984 Act be extended to the IP core in the chip, but there is currently a lack of judicial practice.

Correctly implement reverse analysis
As early as 2001, domestic experts and scholars expressed concerns about the abuse of reverse analysis technology, worrying that design companies’ excessive reliance on reverse design would constrain their desire and thinking for innovation. Some experts and scholars even put forward the radical view that “reverse design should be prohibited”. In the United States, where the integrated circuit industry is relatively mature, the industry’s attitude towards reverse analysis is more pragmatic. Most of the larger integrated circuit design companies will arrange R&D funds every year to purchase technical analysis, competition analysis and patent analysis services from professional reverse analysis companies.
China’s integrated circuit design capabilities are backward, and at this stage, it is even more necessary to correctly and legally use reverse analysis technology to improve design levels, avoid patent infringement, conduct patent evidence collection and promote healthy competition.

Applied to competition analysis and technology analysis
To develop China's integrated circuit design industry, we must continue to innovate and accumulate independent intellectual property rights. Since the domestic integrated circuit industry lags far behind, designers should actively refer to and learn foreign advanced design technology. For commercial interests, many large foreign companies are independently developing their own technologies. Many technical solutions and design techniques are rarely mentioned in public literature and can only be studied and researched through reverse analysis.

Application in patent analysis
In the integrated circuit industry, patent infringement often occurs, and many infringements occur without the designers' awareness. As the intellectual property awareness of Chinese design companies continues to improve, design companies are paying more and more attention to applying for patent protection for new technologies. At the same time, they are also actively investigating other companies' patents in the process of developing products to avoid patent infringement.
In countries with developed semiconductor industries, design companies not only compete with each other in the product market, but also in the patent field. Many design companies conduct patent infringement analysis on a large number of chips every year to obtain litigation evidence. Patents have become a business model. Some design companies do not even have specific products. They just apply for or purchase a large number of patents and then obtain commercial benefits through patent licensing. In order for
China's design companies to grow and develop, in addition to working hard on product technology and marketing, they must also develop their own patent strategies. It can be expected that with foreign companies already mastering a large number of integrated circuit patents, the patent litigation faced by Chinese integrated circuit design companies will continue to increase. Therefore, domestic companies should apply for patent technology on the one hand, and actively conduct patent analysis on new products of foreign companies on the other hand, so as to have evidence support when conducting patent defense in the future.

Application to chip imitation
When the technical accumulation and technical capabilities are insufficient to carry out forward design, or the forward design cannot meet the compatibility requirements, the legal use of chip imitation technology becomes an important way of chip design.
When imitating chips, attention should be paid to the applicable conditions to avoid intellectual property disputes. Chip imitation is completely legal in the following three cases.
First, chip imitation is not used to obtain commercial benefits. When military chips are banned, restricted or discontinued, and forward design cannot meet the compatibility requirements, chip imitation becomes the only feasible design method. For national security reasons, limited chip imitation in non-commercial fields does not violate intellectual property laws.
Second, the patent and layout design rights of the imitation chip have expired. The layout design rights and patent rights of integrated circuits have a certain validity period. China's "Regulations on the Protection of Integrated Circuit Layout Designs" stipulates that "the protection period for exclusive rights to layout designs is 10 years, calculated from the date of application for registration of the layout design or the date of first commercial use anywhere in the world, whichever is earlier. However, regardless of whether it is registered or put into commercial use, the layout design will no longer be protected by these regulations 15 years after the date of completion of its creation." China's "Patent Law" stipulates that "the term of invention patents is 20 years." Therefore, when the intellectual property rights of the counterfeit chip expire, chip counterfeiting does not constitute infringement.
Third, the chip counterfeiting unit has obtained authorization from the original chip designer. Some design companies have stopped production of older or poorly selling chip products, so that system manufacturers who have already used the chip cannot obtain chip supply sources. At this time, the system manufacturer can apply for authorization from the original chip design unit and counterfeit the chip if the authorization is permitted.