The Mechanisms Considered, and Why Each Was Rejected

In one line

Patent, copyright, industrial design, trade secret and unfair competition were each tested against a layout-design and each failed, which is why the world created a sui generis right.

What "sui generis" means

Sui generis is Latin for "of its own kind". In intellectual property it describes a right created specially for a subject matter that does not fit the existing categories. Layout-designs are the standard example, along with plant varieties and databases.

And the Washington Treaty allows it to be done either way. Article 4 provides that "each Contracting Party shall be free to implement its obligations under this Treaty through a special law on layout-designs (topographies) or its law on copyright, patents, utility models, industrial designs, unfair competition or any other law or a combination of any of those laws".

So a country could have used an existing right. Almost none did, and the reasons follow.

Patent law

What it would require. Under section 2(1)(j) of the Patents Act, 1970, an invention must be new, involve an inventive step and be capable of industrial application.

Why it fails.

Most layouts involve no inventive step. The elements are standard, the design rules are known, and the skill is in arranging them well. That is craft, not invention.

Examination is too slow. A patent takes years. A chip generation lasts two or three.

The monopoly is too strong and too long. Twenty years of monopoly over an arrangement, against which independent creation is no defence, would freeze the industry.

And section 3(d) of the Patents Act stands in the way of much of what is claimed as an improvement, because a mere new use or new form of a known thing is not an invention.

Copyright law

What it would offer. Automatic protection, no registration, a long term, and a right against copying rather than a monopoly, which fits the reverse-engineering problem well.

Why it fails.

A layout-design is not obviously an artistic work. It is functional through and through. Section 2(c) of the Copyright Act, 1957 covers a painting, a sculpture, a drawing, an engraving, a photograph, a work of architecture and any other work of artistic craftsmanship. A chip layout is none of those, and the drawing of it is an engineering drawing whose value lies entirely in what it does.

The term is absurdly long. Life plus sixty years for a design that is obsolete in three.

There is no register. A competitor could not search to find out what was taken.

And the idea and expression line does not work here. In a layout the arrangement is the function. There is often only one good way to lay out a given circuit within given design rules, so protecting the expression protects the idea, which copyright is not supposed to do.