Chip ‘Microcode’ Covered by Copyright, Judge Rules
In a significant ruling for the semiconductor industry’s effort to win protection for its unique chip designs, a federal judge in San Jose has held that the “microcode” of a semiconductor falls under the federal copyright laws. A microcode interprets high-level language commands into language recognized by a computer’s hardware.
The opinion, issued earlier this week by U.S. District Judge William Ingram, came in a closely watched lawsuit filed by Intel Corp. of Santa Clara, Calif., against NEC Corp., the Japanese electronics giant. Intel claims that two NEC microprocessors copied the microcode of Intel’s 8086 chip.
Ingram hasn’t yet ruled on whether NEC infringed on Intel copyrights, but his finding that federal copyright laws apply to the tiny etchings on microchips is the first such legal opinion.
Software Already Covered
Courts have already granted copyright protection to computer software programs, but there has been a major legal debate over whether the microcodes of microchips are software or hardware. Ingram ruled that they are software. The judge also said the methodology used to create microcodes “is to the court indistinguishable from that employed in the creation of any computer program.”
Intel said it won “the most significant issue” in the case and called it “an important precedent for the entire U.S. electronics industry, which in the past has seen unauthorized versions of its innovative products copied by competitors at a fraction of the original development cost.”
“We were convinced all along that microcode is as copyrightable as any other computer program,” said F. Thomas Dunlap, Intel’s general counsel.
NEC officials downplayed the significance, saying the company considered Monday’s ruling less important than the pending infringement question.
Precedent May Be Limited
Intel has portrayed its case as one on behalf of innovative American semiconductor firms whose intellectual property is routinely being stolen by foreign firms, often Japanese, that copy U.S. microchip designs.
But some experts in the developing field of computer law believe that the precedent would be limited if NEC ultimately wins the infringement question. NEC hopes to establish that it made its own intellectual contribution to the chips.
“I think it’s fairly significant regardless of what happens on the infringement question, but the degree to which it helps will depend on the infringement ruling,” said Los Angeles attorney Allen Grogan.
“NEC and most of the big Japanese firms aren’t out there doing straight Taiwan knockoffs of chips anymore. They’re adding some independent effort,” Grogan said. “If the court says that independent effort is not enough, it will probably help American producers who are at the forefront of innovation.”
