Concerning the legality of hardware study and publication of obtained information

Tuesday 18 November 2008
by  Sebastien Fourestier
popularity : 7%

The aim of this note is to give complement information in a previous note in which legality of studying a software and publishing thus obtained information are outlined. To this end, conditions compulsory to legally study hardware and publish obtained information, in France, will be recalled.

 1 Protection of industrial creations and hardware studying

Regarding Intellectual Property Code, Book VI, inventions and technical knowledge can be protected to the extent that they are :

1. manufacturing secrets ;
2. invention patents ;
3. specific protections for semiconductor products and new plant varieties (the latter will not be studied in this note).

Studying hardware and publishing information on it can be restricted by these protections.

 2 Manufacturing secrets

Manufacturing secrets protect original manufacturing processes having, for a company, a practical and commercial interest [1]. The fact cwthatthe innovation remains secret is the only protection ensured by manufacturing secrets. Thus, the fact of revealing a manufacturing secret by an employee is penally punishable [2] :

" The penalties for violation of manufacturing secrets are set forth in Article L152-7 of the Labor Code reproduced hereafter :

"Article L152-7. The fact of revealing or attempting to reveal a manufacturing secret by any director or salaried person of the enterprise in which he is employed shall be punishable by imprisonment of two years and a fine of FRF 200,000."

[...] "

As long as one does not reveal a manufacturing secret, one can, without breaking the present protection, study hardware and obtain information.

 3 Invention patents

3.1 Patentable industrial creations

So that industrial creations be protected by invention patents, an explicit request must be made by the interested person [3]. Intellectual Property Code stipulates an invention is patentable if it [4] :

* is new ;
* involves an inventive step ;
* is susceptible to be applied industrially.

Intellectual property code Article L. 611-11 defines which inventions are considered as new [5] :

" An invention shall be considered to be new if it does not form part of the state of the art.

The state of the art shall be held to comprise everything made available to the public by means of a written or oral description, by use or in any other way, before the date of filing of the patent application.

Additionally, the content of French patent applications and of European or international patent applications which designate France as filed, of which the dates of filing are prior to the date referred to in the second paragraph of this Article and which were published on or after that date, shall be considered as comprised in the state of the art.

[...] "

Intellectual property code Article L. 611-14 and L. 611-15 define, respectively, which inventions are considered as involving an inventive step and which inventions are susceptible to be applied industrially [6, 7] :

" An invention shall be considered to involve an inventive step if, having regard to the state of the art, it is not obvious to a person skilled in the art. If the state of the art also includes documents referred to in the third paragraph of Article L611-11, such documents shall not be considered in deciding whether there has been an inventive step. "

" An invention shall be considered susceptible of industrial application if it can be made or used in any kind of industry, including agriculture. "

Article L. 611-10, subparagraph 2, defines several exceptions to above defined patentable field [4] :

" [...]

2. The following in particular shall not be regarded as inventions within the meaning of the first paragraph of this Article :

a) discoveries, scientific theories and mathematical methods ;

b) aesthetic creations ;

c) schemes, rules and methods for performing mental acts,

playing games or doing business, and programs for computers ;

d) presentations of information.

[...] "

3.2 Protection ensured by invention patents

Invention patents confer to the holder or his successors in title an exclusive right to work an invention [8]. Consequently [9, 10],

" The following shall be prohibited, save consent by the owner of the patent :

a)Making, offering, putting on the market or using a product which is the subject matter of the patent, or importing or stocking a product for such purposes ;

b)Using a process which is the subject matter of the patent or, when the third party knows, or it is obvious in the circumstances, that the use of the process is prohibited without the consent of the owner of the patent, offering the process for use on French territory ;

c)Offering, putting on the market or using the product obtained directly by a process which is the subject matter of the patent or importing or stocking for such purposes. "

" 1. It shall also be prohibited, save consent by the owner of the patent, to supply or offer to supply, on French territory, to a person other than a person entitled to work the patented invention, the means of implementing, on that territory, the invention with respect to an essential element thereof where the third party knows, or it is obvious from the circumstances, that such means are suited and intended for putting the invention into effect.

[...] "

Several exceptions to rights conferred by invention patents are defined in Intellectual Property Code Article L. 613-5 [11] :

" The rights afforded by the patent shall not extend to :

a)Acts done privately and for non-commercial purposes ;

b)Acts done for experimental purposes relating to the subject matter of the patented invention ;

c)The extemporaneous preparation for individual cases in on or acts concerning the medicine so prepared.

[...] "

3.3 Studding patented hardware and publishing obtained information

According to the previous subsection, studying hardware cannot be limited by invention patents. Furthermore, publishing obtained information is not prevented by French law.

 4 Semiconductor Products

According to French law, semiconductor products enjoy a specific protection. Thus, is protected [12] :

" The final intermediate topography of a semiconductor product that is the result of its creator’s own intellectual effort. "

Protection holder enjoys protection [13, 14, 3] :

* which takes effect on the day of deposit or at the date of first commercial exploitation if that date is earlier ;
* which is valid until the end of the tenth following calendar year ;
* prohibiting for any third party :
o reproduction of the protected topography ;
o commercial exploitation or importation to that end of such a reproduction or of any semiconductor product incorporating it.
* The prohibition does not apply to the following :
o reproduction for evaluation, analysis or teaching purposes ;
o creation, on the basis of such analysis or evaluation, of a different topography eligible for protection ;
o bona fide acquirer of a semiconductor product can engage in commercial exploitation of the product so acquired, with the help of an appropriate indemnification.

Thus, studying semiconductor product is legal ; these products can be physically reproduced for purposes of analysis. Publishing obtained information is legal.

 References

[1] Définition de secret de fabrique, secret commercial. http://www.lawperationnel.com/Dictionnaire_Juridique/Secret%20de%20fabr%’ique,%20secret%20commercial.htm.

[2] Intellectual property code, Article L. 621-1.

[3] Joanna Schmidt-Szalewski. Droit de la propriété industrielle. Éditions Dalloz, 6ème édition.

[4] Intellectual property code, Article L. 611-10.

[5] Intellectual property code, Article L. 611-11.

[6] Intellectual property code, Article L. 611-14.

[7] Intellectual property code, Article L. 611-15.

[8] Intellectual property code, Article L. 611-1.

[9] Intellectual property code, Article L. 613-3.

[10] Intellectual property code, Article L. 613-4.

[11] Intellectual property code, Article L. 613-5.

[12] Intellectual property code, Article L. 622-1.

[13] Intellectual property code, Article L. 622-5.

[14] Intellectual property code, Article L. 622-6.
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