Details: The method claim recited two steps of sending messages:
A method for communicating between two endpoints connected to a network, the method comprising
having a first endpoint use a global address of a second endpoint to communicate with the second endpoint, wherein:
the global address specifies a protocol, a network identifier, and an address meaningful for the combination of the protocol and a network identified by the network identifier,
an application sends messages directed to the second endpoint through an identity-based communication layer that is situated between a network layer and an application layer, the messages being independent of the protocol, and
the identity-based communication layer transmits the messages to the
second endpoint using the protocol, the network, and the address specified
by the global address.
The Board described the method claims as "directed to software per se, abstract ideas, abstract concepts, and the like, including data per se, data items, messages, addresses, identities, data structures, software layers, software applications, software protocols, and the abstract intellectual processes associated with them."
The Board applied the same "software per se" analysis to the computer-readable media claims,. The Board also held the media claims to be unpatentable under In re Nuijten because they included "transitory signaling embodiments."
With regard to the system claims, the Board found that these claims recited the same subject matter as the method claims. The system claim included "a processor connected to a storage device and one or more input/output devices." However, neither processor nor device ensured statutory subject matter:
Based on the manner in which claim 52, for example, recites the claimed processor, it is not necessarily hardware or a computer itself, and no computer is directly claimed either in the preamble of this claim or the body of the claim.
[T]he expansive scope of the term “device” is intended to encompass data objects themselves, such as objects of data associated with or within a software environment, or software objects as well. Thus, a “device” is a nonce word of substantially broad scope having an optional meaning intended to be attributed to it as disclosed and, in fact, amounts to an abstraction in its own sense. A “device” in this application is not necessarily a physical device.
My two cents: Once again the Board jumps from "software" to "software per se." Yes, the components recited in the claims do sound like software components. But how did we get from "software" to "software per se"? The Applicant never said "per se." We need a case where the Applicant puts some evidence in the record on what these terms mean to a POSITA. If we have evidence on the record that "software" is understood as instructions executing on a processor, then maybe the Board would have to do some real analysis as to whether that is patentable subject matter. Until then, it appears that the Board will merely chant the magic incantation "software per se."
The Board's finding that "a 'device' in this application is not necessarily a physical device" is ridiculous. The spec consistently uses device to refer to computing hardware, and uses device application to refer to the software executing on the device. Note that the Board doesn't cite to any portions of the spec when making this conclusory statement.
The Board's finding that a processor isn't necessarily hardware is almost as ridiculous. The spec does use the term "flow processor" in a way that suggests a "flow processor" is software, but I say that the generic term "processor" is understood differently.
Related Posts: The first post-Bilski decision is Ex parte Proudler, which I blogged about here. Proudler has generated a fair amount of discussion in the blogosophere. If you want some other viewpoints, including some from non-patent attorneys, check out these posts:
Software Freedom Law Center