Business System Patents

Ex Parte Simpson, Appeal 2008-0569 (BPAI 2008)

HP's patent application focused on software used to discover networked devices. Claim 32 was rejected for lack of statutory subject matter.

32. A device discovery service stored on a computer-readable medium, the service comprising:

logic configured to discover devices directly connected to a network that are not directly connected to a computer; and

logic configured to provide a user home service accessible with a network browser with a list of at least one discovered device that is available for use on the network.

This claim is interesting because like Wasynczuk, it involves a system claim that is not patentable subject matter.

'These claims are directed to a "service" stored on a computer-readable medium, the service comprising logic "configured" to perform functions. Logic, read with reasonable breadth, includes descriptive material indicating the algorithm or reasoning behind an operational computer program, not the program itself. As such the claims are addressed to nonfunctional descriptive material, which is non-statutory. "When nonfunctional descriptive material is recorded on some computer-readable medium, in a computer or on an electromagnetic carrier signal, it is not statutory since no requisite functionality is present to satisfy the practical application requirement." MPEP § 2106.01.'

Similarly in Ex parte Godwin (BPAI 2008), the Board found that IBM's "server system" claims non-statutory subject matter. In that case, the server was recited in the claim preamble and thus non-limiting.

Comments

[Greg Aharonian]

Such decisions are nonsense, until such time as the Patent Office defines what it means by "functional", for something to be ruled non-functional. The current PTO definition is complete nonsense - something is functional if it structural and functional - a circular definition that defines nothing. Two years ago the PTO soliticted public comments on its ill-defined "functional" (I think Annex IV in the current guidelines), and since then the PTO has refused to respond. So it is unethical for the BPAI to issue such decisions - without a real definition, it isn't a decision.

[Lowly]

If only the attorney had drafted the claims to read "a computer executable module to" rather than "logic configured to," they wouldn't be in this mess. :(

I think this whole 101 business is complete crap and that the PTO is harping on it because it's a nice way of not having to actually examine applications.

[Lionel Hutz]

That claim is badly drafted. The prosecutor was going for breadth and went too far.

I assume the Applicant had other more rigorous system claims.

[Alan McDonald]

Am I missing something?

This claim seems to be nothing more than

1. Use an algorithm to acquire desired data and
2. Present the data acquired.

How is that EVER patentable?

[Malcolm Mooney]

Welcome to another edition of worthless claims that achieve nothing for anybody except the patent owner with the time and money to troll or seek out mentally challenged licensees.

Can we break it down? This claim is drawn to "A computer readable medium comprising logic."

That includes a piece of paper with writing on it and nobody will argue that writing on a piece of paper makes the paper patentable subject matter. None of the additional language adds a darn thing to the claim. All it does is ascribe purposes to the "logic" and to the computer readable medium. Where is the beef? How much does HP pay its patent attorneys to write this junk?

[Leopold Bloom]

I don't think much of the claim in Simpson, but the Godwin 101 decision isn't right, in my humble opinion. The panel quotes a boilerplate sentence from the spec, stating that the invention "can be realized in hardware, software, or a combination of hardware and software" to support a conclusion that a server can be "implemented in software per se." I agree that "server" can refer to a software module running on a general purpose computer, but that's not the same as "software per se." A software module running on a general purpose computer is a device, is it not?

Further, the claims include further language that precludes coverage of "software per se". For example: 7. A portal server system comprising: a portal coupled to a plurality of portlets, each of said portlets having associated portlet rendering logic; a portlet aggregator communicatively linked to said portlet rendering logic; and, a visual service extension to said portlet aggregator programmed to process said portlet rendering logic to transform visual style attributes in said portlet rendering logic into markup language tags which can be rendered for display in a specified type of pervasive agent.

Note that the portlet aggregator is communicatively linked to the portlet rendering logic. Thus the claim recites something that the system does, not just something the software would permit a computer to do. One portion of a software listing, or a software module in the abstract, can't be "communicatively linked" to another. Once a software module is running, then it can be communicatively linked to another module.

Similar issues with claim 12: A portal server comprising: a portlet aggregator configured to aggregate portlet views into a single portal view; and, a visual service extension to said portlet aggregator programmed to process portlet rendering logic for selected ones of said portlet views to transform visual style attributes in said portlet rendering logic into markup language tags which can be rendered for display in a specified type of pervasive agent.

Here the portlet aggregator is configured to aggregate portlet views, whatever that means. Software in the abstract is not configured to do anything. It's not actually CONFIGURED to do anything until it's executing on a piece of hardware. Thus, the claim can't read on software in the abstract, and must be directed to a device.

Other thoughts?

[Lowly]

"The panel quotes a boilerplate sentence from the spec, stating that the invention "can be realized in hardware, software, or a combination of hardware and software" to support a conclusion that a server can be "implemented in software per se.""

I've had examiners make that argument before. This is why I believe it prudent to never say such a thing in the spec. I would say "can be realized by hardware, executable modules stored on a computer readable medium, or a combination of both." In fact, "software" and "algorithm" are on my list of words to never use in a patent application. It's too easy for an examiner to hone in on them and give you a 101 rejection.

[Malcolm Mooney]

"Other thoughts?"

Computer "engineers" are per se illiterate and should not be allowed to write patents.

[e6k]

"I agree that "server" can refer to a software module running on a general purpose computer, but that's not the same as "software per se."

When you say "software per se" in that context you are necessarily referring to software running on a generic computer.

"A software module running on a general purpose computer is a device, is it not?"

Someone hasn't been paying attention to the latest court cases. It seems that they consider software running on a general purpose computer not adequately bound to statutory material. In other words, it seems you can't make software statutory by just running it on a generic computer.

"It's not actually CONFIGURED to do anything until it's executing on a piece of hardware."

I wasn't aware that you couldn't make software configured to autorun (or any number of millions of things) before it is executed.

My other thought is that you're way off base. Like halfway between first and second waiting to get caught by the pitcher.

[e6k]

"In fact, "software" and "algorithm" are on my list of words to never use in a patent application."

That's good practice unless you're planning on drafting an application containing an algorithm or software. But I agree, you should steer clear of such applications in the first place.

[pds]

"Can we break it down? This claim is drawn to "A computer readable medium comprising logic.""

Yet again, MM evidences his ignorance. Ever hear of Beauregard claims? Probably not. Federal Circuit case law does not appear to be your forte.

"computer-readable medium" claims are ever-present. Just go to:

http://patft1.uspto.gov/netahtml/PTO/search-adv.htm

and enter in the search phrase:
aclm/"computer-readable medium" and you'll get over 16,800 hits. Also, there are many other variations of that term.

[Joe Breimayer]

Lowly is right on. Additionally, too many patents have been issued by examiners (apparently not this one) who do not understand basic English language and grammar. "Logic" is not structure per se, particularly when the written description establishes clearly that it is an algorithm not a device.

[pds]

"But I agree, you should steer clear of such applications in the first place."

I agree ... the backlog in the 2100 and 3600 groups are so big and the examiner turnover is so bad that it already takes years and years to get a FAOM. Of course, as an examiner, I would be frustrated considering the guidance they get on 101 changes a couple of times a year.

But really, you and MM are like wind-up toys. Somebody uses the word "software," the lights come on, the dancing monkeys clap their cymbals together and parrot the same stuff time and time again.

[Lowly]

"That's good practice unless you're planning on drafting an application containing an algorithm or software. But I agree, you should steer clear of such applications in the first place."

I'd simply refer to the software as computer executable modules stored on a computer readable medium. Zero reason to refer to the software as "software" and give E6K a reason to 101 you ;)

Likewise, you don't need to use the word "algorithm." Why can't it be an "approach" or "method?" (Also, I'd never claim an algorithm alone. It would likely be in some sort of computer readable medium claim.)

There is no reason to steer clear of such applications if you claim them properly. The ones I steer clear of are business methods. All you'll end up with is an angry client and the examiner's rejection affirmed on appeal.

[Malcolm Mooney]

pds: "computer-readable medium" claims are ever-present."

Nobody said they weren't.

"Ever hear of Beauregard claims?"

Yes. Did you know that just because a claim is written in Beuregard form does not mean that it is per se patentable under 35 USC 101? Well, now you know. You're welcome.

Maybe later you can explain why a claim in the format of claim 32, i.e., "A computer readable medium comprising logic to provide X" **should** be patentable under 35 USC 101. That would be a neat trick. Please go for it, pds. Also, please explain why you care because, frankly, nobody else does except for trolls and companies who reflexively file patents on every half-baked recycled semi-concept that dribbles out of their software developers' keyboards.

[pds]

The Simpson decision raises an important issue.

The Board's analysis was that the since the computer-readable medium "could even be paper," the Board concluded that it is "a computer listing per se." However, page 12, lines 15-20 of the specification give plenty examples of computer-readable medium that would qualify as statutory subject matter. Thus, given a broadest reasonable claim construction, the computer-readable medium could include both statutory and non-statutory subject matter.

The question this raises is how does 101 apply when claims recite both statutory and non-statutory subject matter. The way I've seen the Board and examiners treat this issue is that since it is non-statutory, then the claim doesn't meet 101.

However, I read 101 very differently. 101 does say exclude a patent from issuing on non-statutory subject matter. Instead, 101 only says that a patent must exist on statutory subject matter. 102, on the contrary, says that the existence of even a single piece of anticipatory prior art is fatal.

Also, I believe this issue was touched by in In re Comiskey. The language discussed the use of modules. The Federal Circuit, relying upon a dictionary definition of modules being software or hardware determined that under a broadest reasonable construction, the claims could require the use of a computer. If the Federal Circuit in Comiskey was inclined to interpret 101 such that if any part of the claimed subject matter is non-statutory, then they would have came out differently.

[Leopold Bloom]

"Someone hasn't been paying attention to the latest court cases. It seems that they consider software running on a general purpose computer not adequately bound to statutory material. In other words, it seems you can't make software statutory by just running it on a generic computer."

Which cases are those? Are you sure you're not talking about computer-implemented means-plus-function claims? I'm not sure who "they" are, but "they" can't just deem a computer to be non-statutory, as much as Malcolm would like them to.

"When you say 'software per se' in that context you are necessarily referring to software running on a generic computer."

Um, no, I'm not. And the latter is statutory. Note that your MPEP says: "functional descriptive material" consists of data structures and computer programs which impart functionality when employed as a computer component." Also, "When functional descriptive material is recorded on some computer-readable medium, it becomes structurally and functionally interrelated to the medium and will be statutory in most cases since use of technology permits the function of the descriptive material to be realized." When the software is actually executing (regardless of the type of processor), there's no question that it is "functionally interrelated" to the computer, and "permits the function of the [software] to be realized."

[pds]

Maybe later you can explain why a claim in the format of claim 32, i.e., "A computer readable medium comprising logic to provide X" **should** be patentable under 35 USC 101.

Does it provide a useful result? In most instances, yes.
Does it provide a result that is tangible and concrete. In most instances, yes.

Seems to meet the 101 test set forth by the Federal Circuit. Then again, if you don't think State Street is good law, then go ahead a counsel your client that comes in with an idea on a computer-implented invention that they shouldn't try to get a patent on it. Please, go for it MM. Not that I'm giving you any legal advice on this matter since for you to follow this advice would likely constitute malpractice. However, I would still like to see you follow your convictions and give that type of advice.

A computer is nothing but a fancy and very flexible tool and software instructions are just instructions as to how to use the tool. If I was to obtain a method claim on the use of a tool, say on a CVD coater, would you complain?

Pretty simple when you actually decide to leave the 19th century concepts of patentable subject matter behind and decide to enter the 21st century.

[pds]

"When you say 'software per se' in that context you are necessarily referring to software running on a generic computer."

Anybody who believes that doesn't know the meaning of the term "per se." Look it up in Black's Law Dictionary since it is a legal term of art and it is being used in a legal context.

By definition, "software per se" is not associated with anything.

[Yet Another Anon]

For Ex Parte Simpson, the independent claim was too short, not surprising that it was rejected.

For Ex parte Godwin, the 101 rejection was for a software server not a hardware server, as the claimed invention was a portal server (a software product sold by IBM and many other companies).

[Yet Another Anon]

PDS wrote: "Yet again, MM evidences his ignorance. Ever hear of Beauregard claims? Probably not. Federal Circuit case law does not appear to be your forte."

So please explain Beauregard's applicability and whether it qualifies as binding precedent from the Federal Circuit.

[Blaise Mouttet]

See http://en.wikipedia.org/wiki/Claim_(patent)#Beauregard_claim

I especially like the part of this wikipedia entry that states that computer-readable media claims are no longer that interesting.

[Malcolm Mooney]

"if you don't think State Street is good law,"

State Street was a worthless decision. But more importantly, it has nothing do with claim 32 which is not a business method claim but a vapid pile of compositional garbage. Try to focus, pds.

[Malcolm Mooney]

"software instructions are just instructions as to how to use the tool. If I was to obtain a method claim on the use of a tool ... would you complain?"

No, but if you were to obtain a patent on the instructions for using the tool, I would complain and so would everyone else. I understand why you insist on kicking up dust around this isssue, pds, but I would have guessed by now that you'd have come to realize that it's a losing strategy.

[pds]

"I especially like the part of this wikipedia entry that states that computer-readable media claims are no longer that interesting."

A computer readable medium isn't just a floppy disk. The list of items encompassed by that term on page 12, lines 15-20. As such, computer-readable medium claims certainly have some relevance. As a general matter, the body of the claim is typically identical to the body of the method claim.

If I recall correctly, in In re Beauregard, the Federal Circuit vacated the BPAI decision, based upon the parties subsequent agreement that the claims were directed to statutory subject matter.

"the 101 rejection was for a software server not a hardware server, as the claimed invention was a portal server"
I think Leopold already addressed those comments.

Again, I think everybody forgets that software per se is not the same as software.

[Malcolm Mooney]

"A computer readable medium isn't just a floppy disk."

Thanks. Is an electromagnetic wave a computer readable medium?

[question]

Malcolm -- why don't you answer your own question -- "Is an electromagnetic wave a computer readable medium?"

[millard duckworth iii]

my insides are computer readable media because when i did my MRI, the machine read my guts and processed an image displaying the information within said guts

"Like halfway between first and second waiting to get caught by the pitcher."

cool it with the sports lingo, e6k, did u get that email i sent?

[Malcolm Mooney]

"Is an electromagnetic wave a computer readable medium?"

Of course, although more accurately it's the space in which the wave is propogating that is the medium. Same with air and water (e.g., soundwaves are propogated through it).

Beaureugard claims are legal toilet paper created to appease a lobby interested in patenting software. A legitimate way of patenting a novel, non-obvious computer that performed a useful function would be to describe the computer itself with, oh, actual words. But those claims would probably be deemed "too narrow" because they wouldn't literally read on a disk or a hard drive or somebody sending sending some code over a telophone wire.

[question]

Is a "medium" Section 101 subject matter?

[pds]

"No, but if you were to obtain a patent on the instructions for using the tool, I would complain and so would everyone else."

But nobody is claiming the instructions, which is a point I have made over and over again yet you just don't seem to get it. An old-time mechanical loom uses punch cards to direct the loom to form the material in a particular pattern by controling various components of the loom. A computer-readable medium is basically just a modern version of those punch cards. They are a structural device/product that provides instructions to tool. The instructions themselves are not being claimed, but instead, a physical embodiment of the instructions, which is capable of being used by the tool, are being claimed.

[pds]

"my insides are computer readable media because when i did my MRI, the machine read my guts and processed an image displaying the information within said guts."

They are a computer readable medium, but they are NOT a computer readable medium embodying instructions for a computer to perform a specific action/series of steps.

There is a difference between functional descriptive material and non-functional descriptive material, your guts would be best described as non-functional descriptive material.

[pds]

"A legitimate way of patenting a novel, non-obvious computer that performed a useful function would be to describe the computer itself with, oh, actual words. But those claims would probably be deemed "too narrow" because they wouldn't literally read on a disk or a hard drive or somebody sending sending some code over a telophone wire."

Computer-readable medium claims are one 1 of 3 ways typically used to claim the invention, the other two or by claiming a device (e.g., the computer) and the method. As I noted earlier, the computer-readable medium claims are more closely tied to the method claims.

[really]

That claim is embarassing.

[e6k]

"But really, you and MM are like wind-up toys. Somebody uses the word "software," the lights come on, the dancing monkeys clap their cymbals together and parrot the same stuff time and time again."

That's in case you didn't quite get it the first time.

"Anybody who believes that doesn't know the meaning of the term "per se." Look it up in Black's Law Dictionary since it is a legal term of art and it is being used in a legal context.

By definition, "software per se" is not associated with anything."

Actually I'm well aware of what it means. And I'm well aware that I just said that in the context of this particular patent, and specifically these claims, any discussion involving "the software per se" is being associated necessarily with a generic computer. I am in other words saying that you cannot distinguish the software from the generic computer in this claim. Why? Because the software wouldn't be performing the claim without the generic computer.

"cool it with the sports lingo, e6k, did u get that email i sent?"

You mean this one?

FROM THE DESK OF MR.MOHAMED KABORE
AUDITING AND ACCOUNTING
SECTION OF BANK OF AFRICA (BOA).
OUAGADOUGOU BURKINA-FASO
WEST AFRICA

Dear Friend,

I am Mr.Mohamed Kabore the director in charge of auditing and accounting section of Bank of Africa (BOA) Ouagadougou Burkina-Faso West-Africa with due respect and regard. I have decided to contact you on a business transaction that will be very beneficial to both of us at the end of the transaction.

During our investigation and auditing in this bank, my department came across a very huge sum of money belonging to our deceased customer who died with his entire family in a plane crash. The fund has been dormant in his account with this Bank without any claim of the fund in our custody either from his family or relation before our discovery to this development.

For more information about the crash you can visit this site:

http://news.bbc.co.uk/1/hi/world/europe/859479.stm

The said amount was U.S $12.5M (Twelve Million Five Hundred Thousand United States Dollars). As it may interest you to know, I got your impressive information through yahoo search on foreign business relations here in Ouagadougou Burkina-Faso. Meanwhile all the whole arrangement to put claim over this fund as the bonafide next of kin and business associate to the deceased, to get the required approval and transfer this money to a foreign account has been put in place and directives, and needed information will be relayed to you as soon as you indicate your interest and willingness to assist me and also benefit your self to this great business opportunity.

In fact I could have done this deal alone but because of my position in this country as a civil servant (A Banker), we are not allowed to operate a foreign account and would eventually raise an eye brow on my side during the time of transfer because I work in this bank. This is the actual reason why it will require a second party or fellow who will forward claims as the next of kin and business associate to the Bank and also present a foreign account where he will need the money to be re-transferred into on his request as it may be after due verification and clarification by the correspondent branch of the bank where the whole money will be remitted from to your own designation bank account.

I will not fail to inform you that this transaction is 100% risk free. On smooth conclusion of this transaction, you will be entitled to 40% of the total sum as gratification, while 60% will be for me. Please, you have been advised to keep "top secret" as I am still in service and intend to retire from service after we conclude this deal.

I will be monitoring the whole situation here in this bank until you confirm the money in your account and ask me to come down to your country for subsequent sharing of the fund according to percentages previously indicated and further investment, either in your country or any country you advice us to invest in. All other necessary vital information will be sent to you when I hear from you.

I will be expecting to hear soonest.

Have a nice day
Mr Mohamed Kabore

Or are you Karl? my email is actually examiner6k@yahoo.com I just bs the email field sometimes.

BTW, anyone on these boards is welcome to contact mr. Kabore, he can be reached at m_kabore03@biz.by

[pds]

"State Street was a worthless decision. But more importantly, it has nothing do with claim 32 which is not a business method claim but a vapid pile of compositional garbage."

Try to focus MM ... State Street wasn't about business method claims. State Street was about statutory subject matter. What State Street said about business method claim is that calling something a "busines method" patent doesn't mean anything because all claims are treated the same way.

"Since the 1952 Patent Act, business methods have been, and should have been, subject to the same legal requirements for patentability as applied to any other process or method."

Thus, when the court discussed the legal requirements as to the claims in State Street they were talking about the legal requirements for all claims. Come on MM, you are slipping. Then again, I think you were already down and never got up.

[Leopold Bloom]

"Actually I'm well aware of what it means. And I'm well aware that I just said that in the context of this particular patent, and specifically these claims, any discussion involving 'the software per se' is being associated necessarily with a generic computer. I am in other words saying that you cannot distinguish the software from the generic computer in this claim. Why? Because the software wouldn't be performing the claim without the generic computer."

Utter nonsense. And nice job quickly changing the subject. Apparently you don't want to defend this ridiculous assertion:

"It seems that they consider software running on a general purpose computer not adequately bound to statutory material. In other words, it seems you can't make software statutory by just running it on a generic computer."

Or this one:

"I wasn't aware that you couldn't make software configured to autorun (or any number of millions of things) before it is executed."

How exactly do you make software do "any number of millions of things" before it's executed?

And you said I was off base... sheesh.

[Malcolm Mooney]

"An old-time mechanical loom uses punch cards to direct the loom to form the material in a particular pattern by controling various components of the loom. A computer-readable medium is basically just a modern version of those punch cards."

And if we go back to the era of punch cards, we'll find all kinds of claims directed to "a computer readable medium, wherein said medium is a card with a first hole at coordinates x/y, a second hole at coordinates, x2/y2, a third hole at coordinates x3/y3 ... and a fiftieth hole at x50/y50, and wherein said medium provides instructions for a computer to calculate an output value from an input."

Right?

Gosh, that must have been a huge amount of work, filing patents on all those specific punchcards whose patentability was predicated on the specific instructions encoded on the cards. How many specific (not generic) punchcard patents were filed? How many were granted? Can you show me one?

[Inventor]

Examiner 6k, check out this site: www.2girls1cup.com

[Malcolm Mooney]

"[MRI images] are a computer readable medium, but they are NOT a computer readable medium embodying instructions for a computer to perform a specific action/series of steps."

Either is claim 32. And yet pds tried to persuade us that Beauregard claims were relevant to understanding why claim 32 wasn't a pile of doo-doo. Since then, he's been mostly moving the goalposts and kicking up dust.

[Malcolm Mooney]

"State Street wasn't about business method claims."

Right, and Dred Scott wasn't about slavery, it was about federalism. LOL.

[pds]

"Actually I'm well aware of what it means. And I'm well aware that I just said that in the context of this particular patent, and specifically these claims, any discussion involving "the software per se" is being associated necessarily with a generic computer. I am in other words saying that you cannot distinguish the software from the generic computer in this claim. Why? Because the software wouldn't be performing the claim without the generic computer."

Really, you need to clean up your grammar because your points are getting lost in ambiguous statements. I say this very seriously and not just to bust your ass. For example, is the "discussion" associated necessarily with a generic computer or the software per se necessarily associated with a generic computer?

Software per se is not associated with a generic computer. Software PER SE, by definition, is not associated with anything. Thus, when an examiner writes "claim 1 is directed to software per se," they are asserting that the claim is not associated with any hardware. If a claim is truly directed to software, per se, then I agree that the claim should not be patentable under 101.

However, I would be hard pressed to find any claim that recites software, per se. These claims may be out there, but I don't see them.

Software, when combined with a generic computer, converts the generic computer into a special purpose computer (or at least that is how I see it). Similarly, the punch cards used with old-fashioned looms create a "new" machine from an old machine.

[pds]

Classic MM ... you ignore the fact that your argument that "[State Street] has nothing do with claim 32" was shown to be yet another one of your legally-unsound arguments and, instead, go you off on some irrelevant tangent.

[pds]

"Either is claim 32."

Claim 32 isn't a classicly-written Beauregard claim, but it certainly covers the same tpe of subject matter. The instructions (i.e. logic) are embedded in a computer readable medium. This is the essence of a Beauregard claim.

[SF]

"The instructions (i.e. logic) are embedded in a computer readable medium. This is the essence of a Beauregard claim."

Unlike the claim at issue, the essence also includes something about "machine-executable" -- which isn't an earth-shattering relevation.

I have to wonder whether HP actually wants to defend this claim or wants the Board, and then the Feds, to shoot this strawman claim down. Isn't HP usually one of the big tech companies that bemoan software-related patents generally?

[curious]

"to shoot this strawman claim down"

interesting, SF

[anon]

"Software, when combined with a generic computer, converts the generic computer into a special purpose computer (or at least that is how I see it). Similarly, the punch cards used with old-fashioned looms create a "new" machine from an old machine."

pds, can you please explain how different punch cards create a "new" machine or how software changes a generic computer into a "special purpose computer"?? A machine is a machine and a computer is a computer; the only thing that "changes" anything is the specific punchcard (or software) being used right??

[II]

"pds, can you please explain how different punch cards create a "new" machine or how software changes a generic computer into a "special purpose computer"??"

A computer becomes in essence a specific purpose machine when it is executing software that causes it to perform the specific purpose.

from the fed circuit en banc in alappat:

Alappat admits that claim 15 would read on a general purpose computer programmed to carry out the claimed invention, but argues that this alone also does not justify holding claim 15 unpatentable as directed to nonstatutory subject matter. We agree.
We have held that such programming creates a new machine, because a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software. In re Freeman, 573 F.2d 1237, 1247 n.11, 197 USPQ 464, 472 n.11 (CCPA 1978); In re Noll, 545 F.2d 141, 148, 191 USPQ 721, 726 (CCPA 1976); In re Prater, 415 F.2d at 1403 n.29, 162 USPQ at 549 n.29.

[Malcolm Mooney]

"The instructions (i.e. logic) are embedded in a computer readable medium."

Ah yes. Like a recipe book. Hence the Julia Childs claim format, "A chef-executable set of instructions in a human-readable medium ..."

[Malcolm Mooney]

The Julia Childs claim format shows how a new cookbok creates a new kitchen.

[anon]

"A computer becomes in essence a specific purpose machine when it is executing software that causes it to perform the specific purpose."

So, the "special (or specific) purpose computer" is, in essence, a legal fiction since there can be no "special purpose computer" without the actual NEW/NONOBVIOUS software that makes it such??

[II]

"Hence the Julia Childs claim format"

perfect!!

our PTA is going to be reaping licensing fees for years to come from this years' cookbook.

[Leopold Bloom]

"a general purpose computer in effect becomes a special purpose computer once it is programmed to perform particular functions pursuant to instructions from program software."

But wait, e6k says that the general purpose computer becomes "software per se" when programmed to perform particular functions. As he said: "Why? Because the software wouldn't be performing the claim without the generic computer."

It looks like the Federal Circuit really messed that one up...

[II]

"So, the "special (or specific) purpose computer" is, in essence, a legal fiction since there can be no "special purpose computer" without the actual NEW/NONOBVIOUS software that makes it such??"

exactly. software is patentable as long as you use the right code-words and/or claim format.

[Leopold Bloom]

"since there can be no 'special purpose computer' without the actual NEW/NONOBVIOUS software that makes it such??"

anon, that's a non sequitur. Saying that A+B yields C does NOT mean no C without A+B. For that matter, I don't think anybody (yet) has suggested that a computer claim has to be novel and nonobvious to get past the statutory subject matter hurdle.

[II]

Leopold Bloom - I think anon's point was that in an apparatus claim that's essentially reciting a general purpose computer running software, you couldn't get past 102/103 without the new/nonobvious software.

why not just allow the software per se to be patentable?

[curious]

"why not just allow the software per se to be patentable?"

that is okay with me, but I am afraid that Malcolm's head might explode

[Leopold Bloom]

"Hence the Julia Childs claim format"

I daresay that if you could come up with a cookbook page that can be directly read by the oven and directs the oven to autonomously produce something that's never been seen before, you just might have patentable subject matter...

jaoi(tm) - if you want to take that idea and run with it, be my guest. Since I've only stated the problem to be solved, I'm not a co-inventor.

[Leopold Bloom]

"Bloom - I think anon's point was..."

My bad.

[pds]

"A machine is a machine and a computer is a computer; the only thing that "changes" anything is the specific punchcard (or software) being used right??"

First off, a computer is a machine. Although this seems obvious, I have seen arguments (regarding 101) from some examiners that don't reflect this fairly unremarkable fact. They seem to think that a computer is somehow not a machine.

The machine has a different functionality (and nothing inherently wrong with a functional limitation) and a different structure. The different structure is from the different punchcards (which I believe in the case of looms were boards with different hole patterns). A computer readable medium (e.g., a computer memory, flash drive, CD, DVD) also changes the functionality of the computer in the same manner, and IMHO, should be treated the same way. Then again, it has been treated this way for quite some time.

FYI, you refer to "software," but not software per se. In my mind, operational software is necessarily connected to hardware. As such, if the software is functional (i.e., it actually does something), then, by my reading, the software is connected to a piece of hardware, which puts the software into the realm of statutory prior art.

"that is okay with me, but I am afraid that Malcolm's head might explode"
That would be a positive byproduct. However, software per se is nothing but an abstract idea because, by definition, it is unconnected to anything. As such, how can you prove infringement? You cannot. This is why nobody (with an experience in the art) claims software per se.

MM must be starting his weekend drinking early with this attempted thread hijack.

Unfortunately, for those of us that want to have a serious discussion about the issues raised by these cases, he just clutters up the thread.

[AllSeeingEye]

Mooney dreams about Julia Childs...

I like the post above along the lines of - one mention of "software" and the lights go on and the monkeys begin banging their cymbals together - wrt Mooney and others. And then out comes the references to pieces of paper and stuff. Give us all (including yourself) a rest. We've all heard your hackneyed one trick pony show way too many times. Its no longer interesting, not even with the doo-doo references you are so fond of.

There are so many things wrong with the claim above that have nothing to do with Beauregard or anything else. Its just a poorly drafted claim.

[Malcolm Mooney]

"I daresay that if you could come up with a cookbook page that can be directly read by the oven and directs the oven to autonomously produce something that's never been seen before, you just might have patentable subject matter..."

Yes, likewise if you invented a new "computer readable medium," that generic composition might be patentable.

But printing new information onto an old composition should never make that old composition patentable. Hence, the inherent bogusness of "Beauregard claims."

[AllSeeingEye]

Here's how I might have written that claim:

32. An article of manufacture comprising:
a computer readable medium; and
instructions carried on the computer readable medium, the instructions associated with a device discovery service, the instructions readable by a processor, the instructions, when read and executed, for causing the processor to:
discover devices directly connected to a network that are not directly connected to a computer; and
provide a user home service accessible with a network browser with a list of at least one discovered device that is available for use on the network.

Thats just a stab at it... However, it seems to me, a network operating system that checks the status of network devices such as network printers does the exact same thing.

[Malcolm Mooney]

"The different structure is from the different punchcards (which I believe in the case of looms were boards with different hole patterns)."

Are the individual boards patentable subject matter simply because the "different hole patterns" are new and non-obvious?

My cookbook recipe is new and non-obvious. And if it's in a chef-readable format kitchen-executable format, it seems like the Julie Childs-type claim is good to go.

All we need is for the Food Network to get their lobbyists working and we can end the unfairness once and for all. Our nation is waiting! No wonder American food is universally mocked for its blandness and unhealthiness. Without recipe patents, there is no incentive to develop new food. The culinary arts in America are dying because of the lack of strong patent protection.

[AllSeeingEye]

Mooney, you don't know what a Beauregard claim is. Go fold some proteins while you are thinking about Julia Childs...

[Malcolm Mooney]

"And if it's in a chef-readable format"

That includes robot chefs, by the way.

[AllSeeingEye]

And monkey butlers...

[curious]

AllSeeingEye -- thank you for your proposed claim 32 (I was hoping that someone on this board would prepare and share a claim with us).

[hah]

I love seeing things like "associated with" in claims. Is that like, "related to" or "in regard to" or "substantially in accordance"?

[pds]

"My cookbook recipe is new and non-obvious. And if it's in a chef-readable format kitchen-executable format, it seems like the Julie Childs-type claim is good to go."

You don't know about patentable food products? Yet another deficiency in MM's knowledge regarding patentable subject matter. Probably one of the best examples is Pringles (TM).

Claim 1 of U.S. Patent No. 3,998,975:

1. A process for preparing a potato chip of tender eating quality characterized by a multiplicity of individual expanded air cells, said chip being made from a dough comprising dehydrated cooked potatoes and water, said process comprising the steps of: adjusting the iodine index and adjusting the lipid content of said dehydrated potatoes to provide a lipid content and an iodine index which are defined by points within the cross-hatched area of FIG. 1, intimately admixing water with said dehydrated cooked potatoes to form a coherent workable dough comprising from 25% to 55% water by weight, said dough being free of non-potato binder materials, forming said dough into chip-like pieces, and frying said pieces until they are crisp.

Looks like a recipe to me.

I'm sure that a new and non-obvious machine capable of making said chips would be patentable. Also, if the machine included a computer, then the computer-readable instructions that caused the machine to perform the process could also be patentable.

[SF]

"You don't know about patentable food products? ... Probably one of the best examples is Pringles (TM)."

patentable? ok.

.. but food???

[Malcolm Mooney]

pds: "Looks like a recipe to me."

Indeed. Now put the phrase "A computer readable medium comprising instructions for a process, wherein said process is" in front of that recipe. Then try to patent it.

Then apologize for being a twit.

[Malcolm Mooney]

The twit comment was uncalled for. I apologize. I was upset by this horrific (but not unexpected) news:

"Alarmed by the growing financial stress at the nation’s two largest mortgage finance companies, senior Bush administration officials are considering a plan to have the government take over one or both of the companies and place them in a conservatorship ... Under a conservatorship, the shares of Fannie and Freddie would be worth little or nothing, and any losses on mortgages they own or guarantee — which could be staggering — would be paid by taxpayers."

http://www.nytimes.com/2008/07/11/business/11fannie.html?_r=1&hp=&adxnnl=1&oref=slogin&adxnnlx=1215756232-0Ww2hjrUbYFNVH9KhHzL2w

[millard duckworth iii]

E6K, yes it is I, Mr. Karl, pleased to be meeting you.

[EG]

SF,

Yep, food products are patentable. The original patent on the Pringle's product was U.S. Patent 3,498,798 (issued in March 3, 1970) on a package comprising a plurality of stacked, saddle-shaped chips and a "substantially rigid tubular package surrounding" that stack of chips. One of the inventors, Fred Baur, recently died and had some of his ashes buried, by his request, in a Pringle's container.

[Joe Breimayer]

I searched aclm/"logic configured to" and "computer readable medium" and 660 matches resulted. The first one I looked at is 7,387,238, which recites the first (but for some reason not the second) expression in the claims. However, there is no use of "logic configured to" in the description and figures. As an Examiner, I would have rejected the claims as lacking support, requiring the applicant to correlate each claimed "logic" to the disclosed algorithms. Do Examiners typicaly take that tack?

Apparently, the Simpson application defined "computer readable medium" as including the code printed out on paper. This `238 patent has similar language defining "computer readable medium" as follows (see last sentence):

"Furthermore, stored value card management system 501 and customer enrollment module 500 may be embodied in any computer-readable medium for use by or in connection with an instruction execution system, apparatus, or device, such as a computer-based system, processor-containing system, or other system that can fetch the instructions from the instruction execution system, apparatus, or device and execute the instructions. In the context of this document, a "computer-readable medium" can be any means that can contain, store, communicate, propagate, or transport the program for use by or in connection with the instruction execution system, apparatus, or device. The computer-readable medium can be, for example but not limited to, an electronic, magnetic, optical, electromagnetic, infrared, or semiconductor system, apparatus, device, or propagation medium. More specific examples (a nonexhaustive list) of the computer-readable medium would include the following: an electrical connection (electronic) having one or more wires, a portable computer diskette (magnetic), a random access memory (RAM) (electronic), a read-only memory (ROM) (electronic), an erasable programmable read-only memory (EPROM or Flash memory) (electronic), an optical fiber (optical), and a portable compact disc read-only memory (CDROM) (optical). Note that the computer-readable medium could even be paper or another suitable medium upon which the program is printed, as the program can be electronically captured, via for instance optical scanning of the paper or other medium, then compiled, interpreted or otherwise processed in a suitable manner if necessary, and then stored in a computer memory."

I wonder if this boilerplate appears in most patents describing or claiming "computer readable medium" and the impact of this decision on the validity of Beauregard claims in general?

[Malcolm Mooney]

"The computer-readable medium can be, for example but not limited to, an electronic, magnetic, optical, electromagnetic, infrared, or semiconductor system, apparatus, device, or propagation medium."

LOL!!!! Nothing tanks a patent claim like unchecked greed.

[SF]

EG: I was taking a jab at Pringles being considered food.

Joe: With thousands of patents explicitly defining a computer-readable medium to be a signal, you have to wonder whether that will infect the claim construction of other patents that don't explicitly include a signal in a definition, but don't expressly exclude it either.

[Anon In-House]

Mooney,

I completely see that you are against software/medium patents. I think (but am not sure) that you are ok with computer patents that implement specific software. However, I have not heard how you would advise a client software manufacturer, that has spent millions of dollars in R&D to come up with a new software on how they should protect their "idea". They cannot rely on copyright, because there are many ways to write the code. They cannot rely on the computer claim, because they do not make/sell computers with their software on it, and so would have to sue (or at minimum, inconvenience) their customers to prove actual infringement. And they cannot rely on method claims, because once again they would have to sue (or at minimum, inconvenience) their customers to prove actual infringement.

So, I guess what I am saying is that instead of telling us they the claims are junk, just let us know how you would counsel, and that might turn the light on for folks.

Thanks,

[Leopold Bloom]

"how you would advise a client software manufacturer, that has spent millions of dollars in R&D to come up with a new software on how they should protect their 'idea'..."

Ooh, let me help, Malcolm. In-House, the first problem is your implicit assumption that this software manufacturer is entitled to protection (from competition) for an "idea." I've counseled several clients that IP law doesn't protect them from fair competition, which may include copying their business model, product concept, etc.

And why would you be suing your customers for infringement, simply because you don't sell computers? Wouldn't you be suing your competitor's customers? Or perhaps your competitor, for inducement?

[Malcolm Mooney]

"I have not heard how you would advise a client software manufacturer, that has spent millions of dollars in R&D to come up with a new software on how they should protect their "idea"."

I'd advise them that if they absolutely need patent protection to recoup their R&D, then they are screwed.

"They cannot rely on copyright, because there are many ways to write the code."

There are many ways to write Star Wars but somehow you don't find people filming their own versions of Star Wars every day. Perhaps there is something about copyright protection that you don't understand.

[pds]

"There are many ways to write Star Wars but somehow you don't find people filming their own versions of Star Wars every day. Perhaps there is something about copyright protection that you don't understand."

Still confused about the difference between functional and non-functional? No wonder why your analysis stinks.

[pds]

The following is from State Street:

"The plain and unambiguous meaning of Section 101 is that any invention falling within one of the four stated categories of statutory subject matter may be patented, provided it meets the other requirements for patentability set forth in Title 35, i.e., those found in Sections 102, 103, and 112, Para.2"

I keep shining the spotlight yet the peanut gallery is more enthralled with Star Wars and Beatty Crocker cook books.

What the case law states is that the claimed subject matter has to fall within on of the four stated categories of statutory subject matter. Based upon a BROADEST reasonable claim construction consistent with the specification, the claims also include devices. Ergo, the claim meets the requirements of 35 USC 101.

35 USC 101 does NOT read:

Whoever invents or discovers any new and useful that falls outside of a process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may not obtain a patent therefor.

Instead, 35 USC 101 reads:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

[Anon In-House]

Leopold
- if you are unaware, your customer's and a competitor's customers are often the same entity, as that same entity often (almost 100% of the time) buys from multiple sources.
- to your first point, aren't you just dodging the question? Say that the software would clearly make a patentable device once combined with a machine (which yes, was assumed in my question), would your counseling still be "tough, deal with it)?

Mooney
- I understand quite a bit about copyright, especially in the area of software. And while your example seems to simplify the analysis, I think you know that the comparing the two is not a legitimate response. At the end of the day, what is truly useful from a lot of software is not how it is written, but what it accomplishes once combined with a computer. The same cannot be said about Star Wars, can it?
- nice advice to your client --> go spend millions and don't worry, it will take at least 6 months for the big guys to copy your product so deal with it. If that is truly your attitude, then why would ANYBODY need ro want patent protection? Come on, would you give that same advice to a big pharm company --> spend billions, cure cancer, and just rely on "first to market" to recover your investment.

[Malcolm Mooney]

"nice advice to your client --> go spend millions and don't worry"

That wasn't my advice. My advice is that a software-writing client should be very worried if they need patent protection to recoup their investment.

"would you give that same advice to a big pharm company"

Of course not. But I wouldn't tell them to stop paying their lobbyists either.

"what is truly useful from a lot of software is not how it is written, but what it accomplishes once combined with a computer"

Exactly like a piece of paper with a recipe printed on it. Except for some strange reason you can't patent the piece of paper with a recipe printed on it. Go figure.

[curious]

"Exactly like a piece of paper with a recipe printed on it" -- lousy analogy, Malcolm

[Anon In-House]

"Exactly like a piece of paper with a recipe printed on it"

Very lousy analogy - that piece of paper with a recipe cannot cause a computer to provide a useful result, nor does it change the structure of a general purpose computer.

[SF]

"So, I guess what I am saying is that instead of telling us they the claims are junk, just let us know how you would counsel, and that might turn the light on for folks."

I'd say one alternative may be "a method for installing software onto computing system, the method comprising: ... wherein the software includes machine-executable instructions that..." (Of course, this is just a rough example, but you get the idea.)

Like the novel process claims you mentioned, you'd have to rely on direct infringement by a customer or potential customer to show inducement or contributory infringement. But given that it's a virtual lock that someone selling software is inducing someone to install it and that there's no non-staple use other than installation (thus contributory), there would be minimal (if any) intrusion on the customer or potential customer. Moreover, forcing people to register upon installation is so commonplace that you probably could get the installation information from the competitor.

[Malcolm Mooney]

"that piece of paper with a recipe cannot cause a computer to provide a useful result"

Why not? Is there some law of nature that would be violated by a computer reading that piece of paper and causing a machine to make the food according to the instructions on the paper?

[BigGuy]

"a method for installing software onto computing system, the method comprising: ... wherein the software includes machine-executable instructions that..."

The installation method is novel and non-obvious because the content of the software is new? That doesn't sound right...

[Anon In-House]

"Why not? Is there some law of nature that would be violated by a computer reading that piece of paper and causing a machine to make the food according to the instructions on the paper?"

Show where this can be done, and the non-obvious useful result of the process, and maybe we will talk. But I am not falling for your straw-man arguments.

[e6k]

"At the end of the day, what is truly useful from a lot of software is not how it is written, but what it accomplishes once combined with a computer. The same cannot be said about Star Wars, can it?"

That's true, you have to combine starwars with a movie projector, dvd player, or printing press to get the truly useful result.

[Malcolm Mooney]

"Show where this can be done"

Oh, spare me. Somebody already posted the boilerplate in the Simpson application. Computers have been able to retrieve instructions written on paper for decades. Robots have been making food for even longer.

"I am not falling for your straw-man arguments."

My argument is that a program written on a "computer readable medium" is non-statutory subject matter, by definition. It's information in the form of instructions and is functionally **identical** to a new recipe written on old paper and should be an unpatentable composition for the same reasons that a new recipe written on old paper is an unpatentable composition.

The reason such claims are patentable has nothing to do with "patent law" and everything to do with politics.

[e6k]

"35 USC 101 does NOT read:

Whoever invents or discovers any new and useful that falls outside of a process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may not obtain a patent therefor.

Instead, 35 USC 101 reads:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title."

The only thing you just shined light upon is your own blatant stupdity. Yet again we have a case of pds not understanding basic writen language. I can only thank my lucky stars that the Supremes aren't as ridiculously woefully informed or we'd be living in a nation that was completely communist while still having our constitution being "enforced". Because the constitution DOESN'T say there shall not be communism we can have it if our leaders decide to make it so right? Playing the double negative game sure is fun isn't it PDS? Do what the statute says, fail to do so and you will not appear upon examination to be entitled to a patent. End of story.

[Anon In-House]

Mooney,

Since you seem to be putting an awful lot of emphasis on the printed matter doctrine (which, by the way, appears to be related to §103 and not §101), have you read In re Gulack, 703 F.2d 1381?

[pds]

"The only thing you just shined light upon is your own blatant stupdity. Yet again we have a case of pds not understanding basic writen language. I can only thank my lucky stars that the Supremes aren't as ridiculously woefully informed or we'd be living in a nation that was completely communist while still having our constitution being "enforced". Because the constitution DOESN'T say there shall not be communism we can have it if our leaders decide to make it so right? Playing the double negative game sure is fun isn't it PDS?"

You don't know a lick about statutory construction, do you 6K? If you had, you wouldn't have stuck your foot in your mouth like just you did. Also, I see that you are learning from MM ... creating useless strawman that you like to knock down. BTW: There is nothing in the Constitution that prevents the U.S. from instituting a communist system.

You should compare how 101 is written to how 102 is written. Although they both set a requirement for patentability, they do so in very different ways.

"Do what the statute says, fail to do so and you will not appear upon examination to be entitled to a patent. End of story."
What does 101 tell us to do 6K???? Come on ... answer the question? You raised the question, so answer it!!!

It doesn't say "don't claim non-statutory subject matter." It says "claim statutory subject matter." Given the BROADEST reasonable construction of the Simpson claim, this claim encompasses a device, which is statutory subject matter.

If you want to play lawyer, cite me some case law to prove me wrong. This is what real lawyers do all the time. Are you game? or are you going to be like MM by setting up useless strawmen just so you can knock them down?

BTW: Don't complain to me about the use of the double negative ... this is what is being done by the BPAI and the examiners. On the contrary, my interpretation is based upon the actual language of 101, and not the contrived version.

[Anon In-House]

Mooney,

Upon checking your posts, it still appears that you haven't answered my initial question - how would you counsel your client if they asked how to protect their software product? When I constured your answer as a "tough" you claimed that wasn't your answer, so, what was your answer? (Hint: telling them to "be worried" really doesn't answer the question).

[Malcolm Mooney]

"how would you counsel your client if they asked how to protect their software product?"

Honestly, I don't have clients with "software products" nor do I ever want one. But if I did the answer would depend on quite a few different variables, including the overall business strategy (as I alluded to in my 1:39 pm answer to your question). Am I going to list all those variables for you? I don't think so.

[Anon In-House]

Moody, don't get touchy, I laid out what I thought was a simple question, merely in hopes to better clarify your actual position, but you have avoided answering it. Your comment at 1:39 pm ("I'd advise them that if they absolutely need patent protection to recoup their R&D, then they are screwed.") hardly alluded that your answer would depend on their overall business strategy. Remember, I didn't ask how you would provide them PATENT protection, but simply how you would advise them to protect their investment and their improvement, and have since clarified that their improvement combined with a computer would be readily patentable. If you don't want to answer, DON't ANSWER, but don't get all snippy about it.

On the printed matter doctrine, have you backed away from your statement at 4:56 pm ("My argument is that a program written on a "computer readable medium" is non-statutory subject matter, by definition.") yet, as printed matter appears to be statutory subject matter (it can be, afterall, an article of manufacture)?

[e6k]

"BTW: There is nothing in the Constitution that prevents the U.S. from instituting a communist system."

I'm aware, and I'm also aware of the one thing that you seem unable to grasp, there are certain things that are understood even by the legislative document's silence. This is much like your vaunted used of 112 3rd to permit deps in their current form. We do it because some dude put out a piece of paper telling the courts what was supposed to be meant by the langauge, rather than what was actually written. Taking the constitution for example again, if the congress were to try to impose a hardcore communist society then the american people would revolt post haste and the gov. would be overthrown. Of course, no legislator would be even half as stupd as it would take them being to not understand what the constitution outlines is WHAT IS PERMISSIBLE, and not merely what ISN'T PERMISSIBLE. For instance, if there was no clause about congress having the power to impose taxes then the government would have no right to tax us. Any sane person can see this.

As an aside: This is why the gov has to justify certain things the government does in some round about way under one of the parts of the constitution. Btw, these "justification"'s are in large part responsible for a vast majority of the bad things our gov has done.

Also as an aside: These types of interpretations are also where you fail on your fallacious interpretation of 112 2nd. But apparently it'll take a CAFC judge spelling it out in even clearer english than the previously cited case did for you for you to completely understand this. Of course, you probably still haven't read that case because you're so convinced that a basic underpinning of the patent system simply doesn't exist.

"It doesn't say "don't claim non-statutory subject matter." It says "claim statutory subject matter."

Saying that is one and the same in this context. Just like in our constitution. And a whole HOST of other laws.

"Given the BROADEST reasonable construction of the Simpson claim, this claim encompasses a device, which is statutory subject matter."

We determine the broadest reasonable interpretation and construction. Not you. And not the applicant. That's why we're in the authority position. If you disagree with us, you can work your way up until perhaps someone decides to agree with you. I can garuntee you this one isn't going to the SC because the CAFC will smack it down so hard it'll make your head spin.

"32. A device discovery service stored on a computer-readable medium, the service comprising:
logic configured to discover devices directly connected to a network that are not directly connected to a computer; and logic configured to provide a user home service accessible with a network browser with a list of at least one discovered device that is available for use on the network. "

Becomes:

"32. A service comprising:
logic configured to discover devices directly connected to a network that are not directly connected to a computer; and logic configured to provide a user home service accessible with a network browser with a list of at least one discovered device that is available for use on the network."

Or in english, the broadest reasonable interpretation:

"32. A service comprising:
logic configured to discover the existance of first things that are connected to something and are not directly connected to something else; and logic configured to provide a service accessible by a second thing with a list of the existance of at least one of the first things"

There is no device in this claim. If they want one there, then they can plonk it down in the body. All of the "thing(s)" in the claim are not recited directly, they have relationships of the "things" to other somethings recited. Maybe you can tell me which statutory class this fits into? Method? Manufacture? Composition? Machine? And improvement thereof? Maybe now that you have the broadest reasonable interpretation more or less laid out you can see for yourself the problems in the claim.

You haven't been able to handle the caselaw in either of the previous threads we've been discussing, so I won't bother with it here.