English version of this post on European Tribune

Enfin c'est ce que tout le monde dit.

Ajout 20070430 2235 : je rajoute les liens et extraits au fur et a mesure.

Le jugement KSR est selon moi une analyse juridico-économique pleine de bon sens de la dérive extraordinaire de la cour d'appel et de l'USPTO sur les brevets évidents. Ce jugement de la cour est unanime et celui qui retiens l'attention de la blogsphère USA. Je dis "juridico-économique" car la cour cite les "forces de marché" de multiples fois. Et rappelle l'inconstitutionnalité d'un régime de brevet qui bloque l'innovation.

Les jugements :

Les sites :

Today, the US Supreme Court held, unanimously, than the specialised CAFC patent court had been bending patent law and as a consequence, retarding progress.

Now, why is this relevant to plans to create a single European patent court? Perhaps it's partly because the patent industry is firmly in control of patent policy in Europe, as it was in the US before these rare SCOTUS decisions. Perhaps it's because a single court means a single law, and the basis for that law is likely to be the twisted EPO interpretation of the EPC, an interpretation that over a fifteen years corrupted the essence of the patent convention until banned subject matter like software became a prime hunting for the patent lawyers. This happened in the States, no surprise it would happen here too.

But above all these reasons, the really terrifying aspect of the EPLA proposals is simply this: there is no equivalent to the US Supreme Court. Yes we have a European Court of Justice, but it is firmly excluded from any competence over the emerging EU patent system.

Think of it for a second… a system with all the flaws of the US system, and none of the correcting mechanisms. A lot of lawyers are going to make a killing in Europe's high-tech sector. High-five, it's Lawyers Gone Wild vol.16!!

KSR Int'l Co. v. Teleflex Inc. (unanimous court) :

(page 5) The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scientific literature, will drive design decisions.

(page 11) We begin by rejecting the rigid approach of the Court of Appeals.

(page 11) the need for caution in granting a patent based on the combination of elements found in the prior art.

(page 13) When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary kill can implement a predictable variation, section 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.

(page 14) Often, it will be necessary for a court to look to interrelated teachings of multiple patents; the effects of demands known to the design community or present in the marketplace; and the background knowledge possessed by a person having ordinary skill in the art, all in order to determine whether there was an apparent reason to combine the known elements in the fashion claimed by the patent at issue. To facilitate review, this analysis should be made explicit. As our precedents make clear, however, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.

(page 15) The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents. The diversity of inventive pursuits and of modern technology counsels against limiting the analysis in this way. In many fields it may be that there is little discussion of obvious techniques or combinations, and it often may be the case that market demand, rather than scienfitic literature, will drive design trends. Granting patent protection to advances that would occur in the ordinary course without real innovation retards progress and may, in the case of patents combining previously known elements, deprive prior inventions of their value or utility.

(page 17) A person of ordinary skill in the art is also a person of ordinary creativity, not an automaton. The same constricted analysis led the Court of Appeals to conclude, in error, that a patent claim cannot be proved obvious merely by showing that the combination of elements was “obvious to try.” When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp. If this leads to the anticipated success, it is likely the product not of innovation but of ordinary skill and common sense. In that instance the fact that a combination was obvious to try might show that it was obvious under §103.

(page 17) Rigid preventative rules that deny factfinders recourse to common sense, however, are neither necessary under our case law nor consistent with it.

(page 24) And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts.

Microsoft Corp. v. AT&T (Justice Stevens dissenting, Justice Roberts took no part) :

(pages 9 and 10) Abstract software code is an idea without physical embodiment, and as such, it does not match S271(f)'s categorization: "components" amenable to "combination" ...

(page 11) The distinctions advanced by AT&T do not persuade us to characterize software, uncoupled from a medium, as a combinable component. Blueprints too, or any design information for that matter, can be independently developed, bought and sold. If the point of AT&T's argument is that we do not see blueprints lining stores' shelves, the same observation may be made about software in the abstract: what retailers sell and consumers buy, are copies of software.

(page 15) The presumption that United States law governs domestically but does not rule the world applies with particular force in patent law.

Bonne lecture, merci de signaler dans les commentaires si vous avez des liens ou extraits supplémentaires.

Ajout 20070503 1208 : Bernard Salanié "Un tournant sur les brevets"

Ajoput 20090701 1102 : Durant Microsoft v. AT&T :

JUSTICE BREYER: I take it that we are operating on an assumption that software is patentable? We have never held that in this Court, have we?