La blogosphère juridique aux USA relate de la récente décision de la cour d'appel dans le cas Blisky :

A federal appeals court issued a decision today that appears likely to scale back the granting of controversial “business-method” patents. For the past decade, patents have been granted for such things as methods for ordering on e-commerce Web sites, systems for conducting Internet auctions, various financial products, and other techniques companies and entrepreneurs have claimed to be “processes” eligible for protection under the U.S. patent statute. The long awaited ruling in what is known as the Bilski case rejected an attempt to patent a method of hedging risk in commodities transactions. In doing so, the U.S. Court of Appeals for the Federal Circuit said that its 1998 ruling that opened the door to such patents must be applied more narrowly.

Le cas de 1998 mentionné est celui de State Street Bank, largement connu pour avoir ouvert les portes de la brevetabilité extrême et sans limite.

Le texte du jugement Blisky (PDF de 132 pages) montre 9 juges en faveur du jugement et 3 contre, sur ces 3 le juge Rader trouve que le jugement ne va pas assez loin pour empecher la brevetabilité (page 123 et suivantes), je cite :

This court labors for page after page, paragraph after paragraph, explanation after explanation to say what could have been said in a single sentence: “Because Bilski claims merely an abstract idea, this court affirms the Board’s rejection.” If the only problem of this vast judicial tome were its circuitous path, I would not dissent, but this venture also disrupts settled and wise principles of law.

Much of the court’s difficulty lies in its reliance on dicta taken out of context from numerous Supreme Court opinions dealing with the technology of the past. In other words, as innovators seek the path to the next techno-revolution, this court ties our patent system to dicta from an industrial age decades removed from the bleeding edge. A direct reading of the Supreme Court’s principles and cases on patent eligibility would yield the one-sentence resolution suggested above. Because this court, however, links patent eligibility to the age of iron and steel at a time of subatomic particles and terabytes, I must respectfully dissent.

[...] In simple terms, the statute does not mention “transformations” or any of the other Industrial Age descriptions of subject matter categories that this court endows with inordinate importance today. The Act has not empowered the courts to impose limitations on patent eligible subject matter beyond the broad and ordinary meaning of the terms process, machine, manufacture, and composition of matter. It has instead preserved the promise of patent protection for still unknown fields of invention.

Innovation has moved beyond the brick and mortar world. Even this court’s test, with its caveats and winding explanations seems to recognize this. Today’s software transforms our lives without physical anchors. This court’s test not only risks hobbling these advances, but precluding patent protection for tomorrow’s technologies. “We still do not know one thousandth of one percent of what nature has revealed to us.” Attributed to Albert Einstein. If this court has its way, the Patent Act may not incentivize, but complicate, our search for the vast secrets of nature. When all else fails, consult the statute.

Il ne reste qu'a espérer que la cour suprême des USA s'inspire de ce dissent.

A lire :

Ajout 20080524 00h23: Plus d'analyses sur Groklaw :