concurring:
I agree that the district court’s instructions did not constitute reversible error on the record presented to us for review. As the district court held, the selection, combination and arrangement of electrical components in the mask works (which it called the “mask work layout design”), including the placement, orientation, and interrelationship of groupings of transistors and interconnection lines are protectible.
However, I write separately for two reasons. First, to emphasize that our decision today does not mean that the SCPA protects chip functionality or provides protection to chips in any way synonymous with the protections provided through patent law. To the extent our opinion or the district court’s rulings pertain to functionality, it is in the context of a case where *1093the experts differed with each other (and even occasionally with themselves) about what the layout design amounts to, and what the architecture of the semiconductor chips at issue is in relation to the organization of components, groupings of transistors, and interconnecting lines. Based on the state of the evidence, I cannot say that the district court erred in allowing the jury to consider the entirety of the mask works for both chips including not only the design layout of the transistors, but also how these transistors came together on the chip to form components and how both chips placed interconnecting lines between those components and groups of transistors. Each side capitalized on the instructions, Clear Logic arguing that the differences in how it laid out its transistors led to substantial and original design differences between its family of chips and Alt-era’s chips, while Altera argued that the way it grouped its transistors into different components and placed interconnecting lines between those components was original to Altera and substantially copied by Clear Logic. In this way, on the facts adduced in this particular case, the jury could decide whether the expression of those elements in Altera’s family of chips was original and substantially similar to the expression of those same elements in Clear Logic’s family of chips.
Second, to suggest that this is the type of case in which it might have been useful to have a court-appointed, independent expert. Neutral definitions and a common understanding of the underlying technology would have been extremely helpful as background for determining whether the chips should have been compared for substantial similarity only at the transistor level, only at the component level, or at some level in between.
I salute the district court and the parties for having held a tutorial on the technology. It was undoubtedly valuable to the district judge. The only problem is, it was unreported (which is understandable, as a principal benefit of a tutorial is the opportunity for informal exchange) and thus, it was unavailable to assist us. In future cases where such formats are used — and I encourage it, having benefitted from similar tutorials when I served as a district judge — I urge district judges and litigants to consider the possibility of videotaping the tutorial for whatever assistance it may be to the court of appeals.