It'sFurthermore, it's also worth noting that ifin addition to the object does contain artistic work (such as industrial design or decoration)utility patent that we're familiar with, it must be actually designed as artworkone may apply a special "design patent" to begin withan object's decorative features. YouHowever, you cannot game the Useful Articles doctrine by hiding a piece of invisible copyrighted artwork inside the object. In this case, your copyright claim would be deemed as "concealed in use" and be rejected [3]:or trying to patent functional aspects the object.
One good example of the application of the "primarily functional" test by the Federal Circuit is found in its recent decision, Power Controls Corp. v. Hybrinetics. Inc. In that case, the court denied a request for a preliminary injunction by the "inventor" of a plastic container for an electric dimmer switch, finding that the container followed precisely the contours of the switch that it enclosed, and was, therefore, "primarily functional" rather than "primarily ornamental." [...] Power Controls, 806 F.2d at 240. Design patents sometimes issue and are then invalidated (for want of ornamentality) on articles that are concealed in use. A vivid example is a septic tank. See C & M Fiberglass Septic Tanks, Inc. v. T & N Fiberglass Mfg. Co., 214 U.S.P.Q. (DNA) 159 (D. S.C. 1981). In such cases the patentee is probably trying to capture some functional attribute. [3]
In addition to utility patents, the Patent Act "provides limited monopolies on product designs that are new, original, and ornamental. Congress created the design patent to promote products possessing
"grace and pleasing appearance." The integrated circuit design, however, is concealed during its use and therefore has no appearance,pleasing or otherwise.'More significantly, chips failed to meet design patent standards because their design is dictated solely by function and not by cosmetic values." Thus, design patents were also inappropriate for semiconductor [6]
Hardware in general is not copyrightable [5] (excluding firmware and its exterior decorative arts or industrial designs) [5].
If the hardware contains original innovations, ita utility patent may be patentedapplied. If it contains decorative arts or industrial designs, it's copyrighted, and one can also apply a design patent. But if it's just an implementation of a preexisting design, and without artistic decorative features, it cannot be copyrighted nor patented, and there's almost nothing to stop someone else from replicating it.
The wide range of uses for semiconductors in both new products and redesigned existing products created a huge market for this new type of electronic components. United States manufacturers feared a concerted effort by foreign semiconductor firms, especially the Japanese, to take over the U.S. market. Thus, U.S. manufacturers began to seek protection for their chips in 1979,51 As a first step, industry members tried to obtain protection by fitting their chips into existing categories of intellectual property.
Several peculiarities in the semiconductor industry precluded an easy solution throughLegislative investigators then-existing patent or copyright law. Existing patent law was inadequate turned to protect semiconductor chips because of the Patent Act'sCopyright Act, because its subject matter coverage and the industry's dynamics. The chips themselves and their layouts seldom reached highseemed expansive enough levels of novelty and non-obviousness, two requirements for patent protection under the Act. The volatility of end-user markets for semiconductors also made patents inappropriateto cover chips. Because technology changes rapidly,Among the typical two-subject matter covered by this statute were pictorial, graphic, and sculptural works, which appeared to three-year waiting periodinclude drawings made patent protection meaninglessof a chip's layout. By the timeCopyright law also offered a semiconductor device was patented, theway around difficulties posed by changes in technology could have developed into a new, unprotected formbecause the Copyright Act explicitly addressed derivative works.
This avenue failed, however, because the Copyright Act as applied has distinguished between technical drawings and the objects produced using them. Although a technical drawing itself can be protected, the Copyright Act does not protect the objects made using the drawing. Thus the Act did not address the semiconductor manufacturer's main concern: prohibiting others from copying its circuit layout and selling the results.
A second difficulty in using the Copyright Act to cover chips was the "useful article doctrine."65 Under this doctrine, the Copyright Act does not give protection to utilitarian objects unless their useful functions can be separated physically or conceptually from their aesthetic aspects. For example, a belt buckle that appears as a free-form metal sculpture is conceptually separable from its useful function. A mask work, however, functions only as part of the manufacturing process and has no real aesthetic aspects, making it a purely useful article. The Copyright Office has consistently denied protection to useful articles, and has refused to accept chips as copies of masks under the Copyright Act.
A second difficulty in using the Copyright Act to cover chips was the "useful article doctrine." Under this doctrine, the Copyright Act does not give protection to utilitarian objects unless their useful functions can be separated physically or conceptually from their aesthetic aspects. For example, a belt buckle that appears as a free-form metal sculpture is conceptually separable from its useful function. A mask work, however, functions only as part of the manufacturing process and has no real aesthetic aspects, making it a purely useful article. The Copyright Office has consistently denied protection to useful articles, and has refused to accept chips as copies of masks under the Copyright Act. After determining that existing intellectual property statutes could not appropriately be applied to mask works, Congress decided that the correct answer to the problem lay in a new sui generis form of protection. Although the new act was modeled after the Copyright Act, it created a new form of industrial intellectual property.
[6] Semiconductor Chip Protection: Changing Roles for Copyright and Competition, James Chesser, Virginia Law Review, Vol. 71, No. 2 (Mar., 1985), pp. 249-295, doi: 10.2307/1073018