Or will JimIvey say that the CRM claim doesn't require all the code elements to be resident in memory at the same time? I would have to admit there is no temporal aspect to a CRM claim.
Nah, I won't go that far yet. And, I'll admit that I wasn't sure how big the buffers would be. But I do believe that such buffers are CRM; they're media and can be read by a computer.
At the very least, the server is making a copy on the client. To say that the server has no responsibility for what happens to the data once it leaves the server is to say I have no responsibility for a rock I've thrown once it leaves my hand.
And, consider that McAgoo serializes each copy of SVirus Finder such that the .exe you download (assuming you use a crappy OS, sorry -- otherwise you wouldn't need a virus finder nearly as much and would just use a good open source one) is different from the .exe the another would download. McAgoo would make a new copy, with a different serial number, for each download.
Lastly, isn't each sending of the SVirus Finder through the NIC for download a separate "use" of the master copy? It's been a very long time since I've looked into that, but I think using a patented item for any purpose (even as just a doorstop) is impermissible use. So, advertising availability of SVirus Finder, taking money, and allowing download of a copy is certainly availing McAgoo of the advantages provided by SVirus Finder.
Is this an act of "use" or "make" under Sect 271? And which actor commits the act -- McAgoo? Or the content provider that McAgoo has contracted with to serve up its downloads? Or does it depend on whether the act is make vs use?
I believe it's at least a "use" for the reasons I gave above. I think it's also a "make" -- at least on the client for the reasons I gave above. And, if it's a "make", it's also a "sell". In fact, I think it must be a "sell". What are you paying for when you buy SVirus Finder? You're paying to have a copy made by McAgoo or it's agent on your hard drive or some other persistent CRM. If anything less happens such that you don't end up with your very own copy on some persistent (non-volatile) CRM, you'd demand your money back. I don't see any reasonable argument that such is not a sale of a making.
As for McAgoo vs. content provider (host service?), I don't think McAgoo can contract away its liability. It'd be like getting a postal carrier for patent infringement when an infringing device is shipped C.O.D. It'd be way too easy for McAgoo to set up a corporation to handle all distribution and to funnel all profits back to McAgoo. If the distribution corporation were the only infringer, damages would be limited to its assets and McAgoo could easily escape all liability.
once I get CRM and/or system claims allowed, I can go back and get my method claims. Since they're all being lumped together, 101 might be res judica (or at least treated like it) for the subsequent method claims.
I know enough about res judicata to recognize it might be an issue here, but not nearly enough to opine on the answer.
CLS and similar opinions tend to start with the method claims, then say that the CRM and system claims are similar and therefore fail 101 for the same reasons. What if I get the CRM claims allowed first? Can I argue (persuasively) that the method claims are similar and therefore pass 101 for the same reasons? I know the PTO doesn't feel bound by anything, let alone it's own decisions. So, I don't expect the PTO to recognize any res judicata in any formal sense, but the way the law is evolving seems to support the reasoning.