Intellectual Property Protection for Printed Circuit Board (PCB) in China

PCB is a common industrial product. The innovation of the technical staff is reflected in the wiring of each layer of the PCBs and the corresponding PCB processing drawings. Does imitating the PCBs of others to produce similar PCBs infringe intellectual property rights? What kind of intellectual property rights are being infringed? There is an extensive discussion on these problems in theory and practice because of the particularity of PCB.

In a copyright infringement case that a world-wide famous computer corporation represented by Beijing Wis & Weals Law Firm against a Chinese mainboard manufacturer regarding the PCBs design of computer mainboard, the dispute between the two parties is whether the production of products in accordance with printed circuit board drawings infringes copyright. Beijing Haidian District People's Court made a controversial judgment. Based on this typical case, we discuss the copyright infringement and intellectual property protection of PCBs products.

I. Manufacturing circuit boards based on drawings in accordance with other’s PCBs is essentially an act of reproduction 

Circuit wiring diagram and components placement diagram are important design drawings in PCB manufacturing. Compared with other products, the manufacture of PCBs has the following particularities:

（1）Design drawings are transformed to products in a plane-to-plane manner, and there is a strict one-to-one correspondence between drawings and products;

（2）The reproduction of design drawings inevitably accompanies the PCB manufacturing process; and

（3）There is a strict one-to-one correspondence between circuit wiring diagram and components placement diagram.

Based on the above, we conclude that the reasons why PCB manufacturing constitutes reproduction include:

1. The reproduction of the component’s placement diagram is realized merely in the form of printing from graphics to graphics, which falls under the provisions regarding reproduction in Article 52 of the Copyright Law of 1990. The difference only lies in the changes in mediums and carriers, and there is no difference in the form of graphics.

2. The reproduction of the circuit wiring diagram is mainly embodied in the following two aspects:

 (1) There is a unique correspondence between the physical wiring and film and the original design drawings. Therefore, the substantial similarity between the two objects can infer that the drawings used by both parties are substantially similar. Therefore, both parties must have copied the substantially similar drawings onto the film, forming substantially similar drawings on the film, as preparation for the manufacture of circuit boards. This reproduction process often occurs in professional PCB manufacturers, rather than directly conducted by designers. However, according to the current PCB manufacturing process, such reproduction is inevitable.

(2) Etching the wiring on the original drawing onto the PCB is also a form of reproduction.

Due to the unique performance and distinct manufacturing process of circuit boards, manufacturing circuit boards according to wiring diagrams is totally different from manufacturing other products according to other product design drawings. The differences between these two processes are mainly reflected in the following aspects:

(1) In accordance with Article 52 of the Copyright Law of 1990, the so-called "manufacture of products according to product design drawings" is often a transformation and implementation from planar drawings to stereoscopic objects. The symbols, lines, marks and other information on the drawings require human understanding before they can be transformed into physical structures and connections. Therefore, the direction transformation from the abstract drawings to the concrete objects would not be possible without the involvement of intellectual labor. Physical objects are the result of human intellectual labor on the basis of original drawings.

The wiring of PCB, however, is a different case in which the transformation from drawings to objects is a mechanical plane-to-plane process, and the information on drawings, such as symbols, lines and marks, is expressed in completely mechanical one-to-one correspondence to that on objects, which requires no human intellectual labor. Physical objects are the result of mechanical reproduction on the basis of original drawings.

(2) In the process of the so-called "manufacture of products according to product design drawings", the drawings are not the manufacturing objects of machines, nor are they involved in the industrial machine manufacturing, but only for people to read and understand in order to control the manufacture of products.  

In the PCB manufacturing process, the drawings are the manufacturing objects of machines, rather than merely technical information for people to read and understand. Once the wiring diagram is determined, the mechanical reproduction process begins, and the symbols, lines, signs and other information on the drawings will become meaningless，the only subsequent thing needed to make the PCBs is to let a machine identify the information on the drawings and carry out a purely mechanical, precise one-to-one reproduction, thus saving the need for people to read or understand the information.

Therefore, based on these analyses, we believe that PCB manufacturing is actually a process of mechanically reproducing circuit wiring diagrams, which is similar to the process of photo remake. The only differences are technological process and carrier in that photo remake is a process of reproduction from film to paper, while PCB manufacturing is a process of reproduction from film to insulation board. "Manufacture of industrial products according to product design drawings" as mentioned in Article 52 of the Copyright Law of 1990 should not include the circumstances of such purely mechanical reproduction.

II. Protection of Intellectual Property Rights in PCBs

1. Copyright Protection of Drawings

The following important drawings will be inevitably generated in the design and manufacture of PCBs:

（1）Schematic circuit diagram;

（2）PCB wiring diagram of each layer;

（3）Components placement diagram.

These three kinds of drawings embody the fruits of intellectual labor in PCBs. They are not only product design drawings indispensable in the design and manufacture of the product, but also represent the core intellectual property rights owned by the designing enterprise in the product.

Although the design principles adopted and functions realized by the circuit are not protected, the specific ways to realize these principles and functions are protected by and fall within the category of works stipulated in the Copyright Law.

In addition to the aforementioned drawings, some other drawings will be produced in the PCB manufacturing process, such as PCB dimension and orientation drawings, through-hole drawings and weld-hole drawings, which also belongs to part of the product design drawings. However, they are mainly derived from the aforementioned three kinds of drawings, are generally used to meet the manufacturing technology needs and do not separately embody much intellectual labor.

2. Patent protection of technical solutions

（1） Inventions and creations around the board and related devices

Patent application may be filed for all inventions and creations proposed in relation to the board of PCB, such as the optimization and transformation of the structure of the board, the new board structure formed by adding or changing the devices on the board, or the tools used for innovative processing of the board, as long as they can solve certain technical problems. Such as patents whose application numbers are CN201820248747.2 and CN201821328836.4.

（2）Inventions and creations around schematic circuit diagram

Application for invention patent may be filed for the function realization order, logical correspondence and electronic components placement scheme between specific modules designed for tackling specific technical problems in the schematic circuit design process. Such as patents whose application numbers are CN201821443635.9 and CN201821359078.2.

（3）Inventions and creations around the realization of the schematic circuit diagram on the board

The technical solutions proposed for tackling technical problems found in the process of realizing the schematic circuit design through product circuit design (i.e. the process of designing the circuit wiring diagram), such as wiring methods proposed for enhancing the connection between components, improving integration, or overcoming the interference and electromagnetic compatibility between components, may be protected by patents as these schemes and methods also reflect the technical creativity of the designers. Such as patents whose application numbers are CN201821065887.2 and CN201820641570.2.

3. Protection of trade secrets in technical solutions

Some researchers believe that due to reverse engineering, protection of trade secrets is not an effective way of protecting PCBs.

The reviewer is of the opinion that the fact that the PCB products can be dissembled and observed may lead to the possibility that competitors may obtain design schemes through reverse engineering to avoid being identified as infringement of trade secrets. However, to judge whether it is completely unfeasible to protect PCBs through protection of trade secrets, it is necessary to take into consideration the burden of proof shouldered by the accused infringer in reverse engineering defense.

The reviewer is of the opinion that in accordance with the Law of the People's Republic of China Against Unfair Competition and other laws and regulations, the assertion of trade secrets is related to whether it is "easy to obtain". If the plaintiff has taken good confidentiality measures, the accused infringer still has to bear the corresponding burden of proof in reverse engineering defense, rather than simply defending the non-infringement on the basis of the feasibility of reverse engineering. That is to say, the accused infringer cannot be exempted from its burden of proof as to whether it has obtained the technical scheme through reverse engineering just because PCBs have the possibility of being reverse engineered in real practice.