Case: 20-1171 Document: 41 Page: 1 Filed: 12/29/2020
United States Court of Appeals
for the Federal Circuit
______________________
SIMIO, LLC,
Plaintiff-Appellant
v.
FLEXSIM SOFTWARE PRODUCTS, INC.,
Defendant-Appellee
______________________
2020-1171
______________________
Appeal from the United States District Court for the
District of Utah in No. 2:18-cv-00853-DB, Senior Judge Dee
V. Benson.
______________________
Decided: December 29, 2020
______________________
DAVID G. OBERDICK, Meyer, Unkovic & Scott, Pitts-
burgh, PA, argued for plaintiff-appellant. Also represented
by JOSEPH AARON CARROLL; JAMES C. WATSON, H. DICKSON
BURTON, TraskBritt, P.C., Salt Lake City, UT.
MARK A. MILLER, Dorsey & Whitney LLP, Salt Lake
City, UT, argued for defendant-appellee. Also represented
by BRETT L. FOSTER, ELLIOT HALES.
______________________
Case: 20-1171 Document: 41 Page: 2 Filed: 12/29/2020
2 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
Before PROST, Chief Judge, CLEVENGER and STOLL, Circuit
Judges.
PROST, Chief Judge.
Simio, LLC (“Simio”) sued FlexSim Software Products,
Inc. (“FlexSim”) in the United States District Court for the
District of Utah for infringing
U.S. Patent No. 8,156,468
(“the ’468 patent”). The district court held the asserted
claims of the ’468 patent ineligible for patenting under
35 U.S.C. § 101 and, as a result, dismissed the action be-
cause Simio’s complaint failed to state a claim upon which
relief could be granted. Simio then moved for leave to file
an amended complaint, which the district court denied.
Simio appeals the dismissal and the denial of its mo-
tion for leave to amend. We affirm.
BACKGROUND
I
The ’468 patent is titled “System and Method for Cre-
ating Intelligent Simulation Objects Using Graphical Pro-
cess Descriptions.” Its background section describes
different types of simulations, including those that are
event-oriented, process-oriented, and object-oriented, the
last of which is relevant here. ’468 patent col. 2 l. 10–col. 3
l. 26.
Object-oriented simulations are, as the name suggests,
based on “objects.” Objects can be things in the simulation,
such as people, vehicles, or machines. Although the patent
acknowledges that object-oriented simulations have ex-
isted since the 1960s,
id. at col. 2 ll. 10–19, it states that
earlier object-oriented simulation products were “program-
ming-based tools” that were “largely shunned by practi-
tioners as too complex,”
id. at col. 3 ll. 13–14. The patent
also describes a trend that emerged in the 1980s and 1990s:
using graphics to simplify building simulations. See
id.
at col. 2 ll. 46–54 (“The introduction of Microsoft Windows
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SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 3
made it possible to build improved graphical user inter-
faces and a number of new graphically based tools emerged
. . . .”).
The ’468 patent’s purported invention concerns making
object-oriented simulation easier and more accessible by
letting users build simulations with graphics instead of
programming:
Objects are built using the concepts of object-orien-
tation. Unlike other object-oriented simulation
systems, however, the process of building an object
in the present invention is simple and completely
graphical. There is no need to write programming
code to create new objects.
Id. at col. 8 ll. 22–26; see also
id. at col. 4 ll. 39–42 (“Unlike
existing object-oriented tools that require programming to
implement new objects, Simio™ objects can be created with
simple graphical process flows that require no program-
ming.”), col. 6 ll. 50–53 (“The present invention is designed
to make it easy for beginning modelers to build their own
intelligent objects . . . . Unlike existing object-based tools,
no programming is required to add new objects.”).
Claim 1 is the only independent claim. 1 It recites:
A computer-based system for developing simula-
tion models on a physical computing device, the
system comprising:
one or more graphical processes;
1 The district court discussed only claim 1. Because
Simio also discusses only claim 1 and does not separately
argue any other claim’s eligibility, we treat claim 1 as rep-
resentative for purposes of our eligibility analysis. See
Elec. Power Grp., LLC v. Alstom S.A.,
830 F.3d 1350, 1352
(Fed. Cir. 2016).
Case: 20-1171 Document: 41 Page: 4 Filed: 12/29/2020
4 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
one or more base objects created from the one or
more graphical processes,
wherein a new object is created from a base object
of the one or more base objects by a user by assign-
ing the one or more graphical processes to the base
object of the one or more base objects;
wherein the new object is implemented in a 3-tier
structure comprising:
an object definition, wherein the object def-
inition includes a behavior,
one or more object instances related to the
object definition, and
one or more object realizations related to
the one or more object instances;
wherein the behavior of the object definition is
shared by the one or more object instances and the
one or more object realizations; and
an executable process to add a new behavior di-
rectly to an object instance of the one or more object
instances without changing the object definition
and the added new behavior is executed only for
that one instance of the object.
This last limitation—the “executable-process limitation”
(also referred to as the “add-on limitation”)—concerns
changing a particular object’s behavior without changing
the object’s overall definition in the simulation. By way of
an example given during prosecution, in a simulation con-
taining an object definition for “Poodle” and poodles Sam
and Fred, a user might independently change Sam’s behav-
ior (e.g., make him tend to chase cars) without similarly
changing the behavior of Fred or any other poodle.
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SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 5
II
Simio’s complaint accused FlexSim of infringing claims
1–3, 6, 8, and 9 of the ’468 patent (the “asserted claims”).
On December 21, 2018, FlexSim moved to dismiss the com-
plaint under Federal Rule of Civil Procedure 12(b)(6), ar-
guing that it failed to state a claim upon which relief could
be granted because the asserted claims are ineligible for
patenting under
35 U.S.C. § 101.
On January 18, 2019, before Simio filed its opposition
to the motion to dismiss, the parties jointly submitted a re-
port to the district court agreeing to a March 15, 2019 dead-
line to move to amend pleadings. The court adopted the
parties’ proposed deadline and set March 15, 2019, as the
“Last Day to File Motion to Amend Pleadings (absent good
cause)” in its January 23, 2019 scheduling order. J.A. 145.
Simio filed its opposition to the motion to dismiss on
February 8, 2019. The opposition included a footnote stat-
ing: “Simio also reserves the right to amend its [c]omplaint
in order to more fully develop these issues.” J.A. 175 n.8
(citing Aatrix Software, Inc. v. Green Shades Software, Inc.,
882 F.3d 1121 (Fed. Cir. 2018)). FlexSim replied, and the
district court held a hearing on the motion on May 29, 2019.
The district court applied the two-step framework set
forth in Alice Corp. Pty. Ltd. v. CLS Bank International,
573 U.S. 208 (2014), and held the asserted claims ineligi-
ble. Simio, LLC v. FlexSim Software Prods., Inc., No. 2:18-
cv-00853,
2019 WL 2552243, at *3–4 (D. Utah June 20,
2019) (“Dismissal Op.”). In a thoughtful opinion, the court
concluded that (1) the claims are directed to “the decades-
old computer programming practice of substituting
text[-]based coding with graphical processing,” which the
court determined was an ineligible abstract idea and
(2) considering the claim elements both individually and as
an ordered combination, FlexSim “met its burden of show-
ing no inventive concept or alteration of computer function-
ality sufficient to transform the system into a patent-
Case: 20-1171 Document: 41 Page: 6 Filed: 12/29/2020
6 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
eligible application.”
Id. The district court accordingly
granted the motion to dismiss. 2
After the court’s dismissal and entry of judgment,
Simio moved for reconsideration under Rule 59(e) and
leave to file a proposed amended complaint (“PAC”). The
district court denied both. It concluded that Simio had
failed to justify reconsideration, having presented no inter-
vening change in law, previously unavailable evidence, or
need to correct clear error or manifest injustice. Simio,
LLC v. FlexSim Software Prods., Inc., No. 2:18-cv-00853,
2019 WL 5423609, at *3 (D. Utah Oct. 23, 2019). The court
also concluded that “amendment would be futile because
the new factual allegations [in the PAC] are inadequate to
remedy the ’468 patent on the merits.”
Id. It did not reach
FlexSim’s argument that because Simio moved for leave to
amend after the scheduling order’s deadline and did not
show good cause for missing that deadline, leave to amend
should be denied.
2 The district court also held the asserted claims in-
eligible for not falling into any of § 101’s four categories of
eligible subject matter: “process,” “machine,” “manufac-
ture,” or “composition of matter.” In particular, the court
determined that the claims did not fall into the “machine”
category (which was the only category Simio relied on).
Dismissal Op.,
2019 WL 2552243, at *2–3 (citing Digitech
Image Techs., LLC v. Elecs. for Imaging, Inc.,
758 F.3d
1344 (Fed. Cir. 2014)). We need not reach this issue, how-
ever, because even assuming the claims fall into the “ma-
chine” category, we conclude that they nonetheless claim
nothing more than an ineligible abstract idea under Alice’s
two-step framework. See Alice, 573 U.S. at 224 (explaining
that claims to, “in § 101 terms, a ‘machine,’” may nonethe-
less be ineligible for claiming one of these exceptions).
Case: 20-1171 Document: 41 Page: 7 Filed: 12/29/2020
SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 7
Simio timely appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(1).
DISCUSSION
We review a district court’s dismissal for failure to
state a claim under the regional circuit’s law. BASCOM
Glob. Internet Servs., Inc. v. AT&T Mobility LLC,
827 F.3d
1341, 1347 (Fed. Cir. 2016). The Tenth Circuit reviews
such dismissals de novo, “accept[ing] all well-pled factual
allegations as true and view[ing] these allegations in the
light most favorable to the nonmoving party.” Evans v. Di-
amond,
957 F.3d 1098, 1100 (10th Cir. 2020) (quoting Pe-
terson v. Grisham,
594 F.3d 723, 727 (10th Cir. 2010)).
We also review a district court’s denial of motions for
reconsideration and leave to amend a complaint under the
regional circuit’s law. Del. Valley Floral Grp., Inc. v. Shaw
Rose Nets, LLC,
597 F.3d 1374, 1379 (Fed. Cir. 2010) (re-
consideration); Chi. Bd. Options Exch., Inc. v. Int’l Sec.
Exch., LLC,
677 F.3d 1361, 1374 (Fed. Cir. 2012) (leave to
amend a complaint). The Tenth Circuit reviews such deni-
als for abuse of discretion, but when leave to amend is de-
nied for futility, review of the legal basis for an
amendment’s futility is de novo. Johnson v. Spencer,
950 F.3d 680, 707 n.10, 720–21 (10th Cir. 2020).
Patent eligibility under § 101 is a question of law that
may involve underlying questions of fact. Interval Licens-
ing LLC v. AOL, Inc.,
896 F.3d 1335, 1342 (Fed. Cir. 2018).
We review the district court’s ultimate conclusion on pa-
tent eligibility de novo.
Id. A patent may be determined
ineligible at the Rule 12(b)(6) stage “when there are no fac-
tual allegations that, taken as true, prevent resolving the
eligibility question as a matter of law.” Aatrix, 882 F.3d
at 1125.
Case: 20-1171 Document: 41 Page: 8 Filed: 12/29/2020
8 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
We first address the dismissal for patent ineligibility,
then the denial of leave to amend the complaint. 3
I
Section 101 of the Patent Act defines patent-eligible
subject matter as “any new and useful process, machine,
manufacture, or composition of matter, or any new and
useful improvement thereof.”
35 U.S.C. § 101. “This pro-
vision, however, contains longstanding judicial exceptions,
which provide that laws of nature, natural phenomena,
and abstract ideas are not eligible for patenting.” Charge-
Point, Inc. v. SemaConnect, Inc.,
920 F.3d 759, 765
(Fed. Cir. 2019) (citing Alice, 573 U.S. at 216).
At step one of Alice’s two-step framework, we “deter-
mine whether the claim[] at issue [is] directed to” an ab-
stract idea. Alice, 573 U.S. at 218. If so, we move to step
two, where we “examine the elements of the claim to deter-
mine whether it contains an ‘inventive concept’ sufficient
to ‘transform’ the claimed abstract idea into a patent-
3 Although Simio purports to separately appeal the
district court’s denial of reconsideration, see Appellant’s
Br. 3–4, 64, its opening brief makes no supporting argu-
ment distinct from its arguments concerning the original
dismissal or denial of leave to amend the complaint. In the
Tenth Circuit, grounds warranting Rule 59(e) reconsidera-
tion include (1) an intervening change in controlling law,
(2) new evidence previously unavailable, and (3) the need
to correct clear error or prevent manifest injustice. Serv-
ants of the Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir.
2000). Simio has shown none of these—much less ex-
plained how the district court abused its discretion by not
finding them. Therefore, to the extent Simio separately ap-
peals the district court’s denial of reconsideration, we af-
firm.
Case: 20-1171 Document: 41 Page: 9 Filed: 12/29/2020
SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 9
eligible application.” Id. at 221 (quoting Mayo Collabora-
tive Servs. v. Prometheus Labs., Inc.,
566 U.S. 66, 72, 80
(2012)).
A
Under step one’s directed-to inquiry, we ask “what the
patent asserts to be the focus of the claimed advance over
the prior art,” Solutran, Inc. v. Elavon, Inc.,
931 F.3d 1161,
1168 (Fed. Cir. 2019) (cleaned up), to determine whether
the claim’s “character as a whole” is directed to ineligible
subject matter, Affinity Labs of Tex., LLC v. DIRECTV,
LLC,
838 F.3d 1253, 1257–58 (Fed. Cir. 2016).
The ’468 patent showcases its key advance: using
graphics instead of programming to create object-oriented
simulations. ’468 patent col. 8 ll. 22–26 (“Objects are built
using the concepts of object-orientation. Unlike other ob-
ject-oriented simulation systems, however, the process of
building an object in the present invention is simple and
completely graphical. There is no need to write program-
ming code to create new objects.”); see
id. at col. 4 ll. 39–42
(“Unlike existing object-oriented tools that require pro-
gramming to implement new objects, Simio™ objects can
be created with simple graphical process flows that require
no programming.”), col. 4 ll. 47–50 (“By making object
building a much simpler task that can be done by non-pro-
grammers, this invention can bring an improved object-ori-
ented modeling approach to a much broader cross-section
of users.”), col. 6 ll. 50–53 (“The present invention is de-
signed to make it easy for beginning modelers to build their
own intelligent objects . . . . Unlike existing object-based
tools, no programming is required to add new objects.”),
col. 8 ll. 60–62 (“In the present invention, a graphical mod-
eling framework is used to support the construction of sim-
ulation models designed around basic object-oriented
principles.”), col. 9 l. 67–col. 10 l. 3 (“In the present inven-
tion, this logic is defined graphically . . . . In other tools,
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10 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
this logic is written in programming languages such as C++
or Java.”).
This purported advance is claim 1’s focus as well—par-
ticularly when read in light of the above. See TecSec, Inc.
v. Adobe Inc.,
978 F.3d 1278, 1292 (Fed. Cir. 2020) (observ-
ing that the directed-to inquiry focuses on the claim lan-
guage itself, read in light of the specification). Claim 1’s
preamble relates to “developing simulation models,” and
the claim then describes creating objects with graphics—
reciting “one or more graphical processes,” “one or more
base objects created from the one or more graphical pro-
cesses,” and “wherein a new object is created from a base
object . . . by assigning the one or more graphical processes
to the base object.” Although a few limitations follow, aside
from the executable-process limitation (which we discuss
below), Simio does not rely on any of them for its eligibility
arguments.
As the ’468 patent acknowledges, using graphical pro-
cesses to simplify simulation building has been done since
the 1980s and 1990s. ’468 patent col. 2 ll. 46–54; see
id.
at col. 1 ll. 25–32 (describing “the shift from programming
to graphical modeling” as an important advance—albeit
one “made 25 years ago”). 4 Simply applying the already-
widespread practice of using graphics instead of program-
ming to the environment of object-oriented simulations is
no more than an abstract idea. See FairWarning IP, LLC
v. Iatric Sys., Inc.,
839 F.3d 1089, 1094 (Fed. Cir. 2016) (cit-
ing Alice, 573 U.S. at 219–20) (holding claims directed to
an abstract idea because, among other things, they “merely
implement[ed] an old practice in a new environment”). In-
deed, here, the claim is “directed to the use of conventional
4 The application leading to the ’468 patent was filed
in May 2009, and it claims priority from an application
filed in September 2008. See ’468 patent, at [22], [63]; id.
at col. 1 ll. 9–11.
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SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 11
or generic technology [i.e., graphical processing generally]
in a . . . well-known environment [i.e., object-oriented sim-
ulations], without any claim that the invention reflects an
inventive solution to any problem presented by combining
the two.” See In re TLI Commc’ns LLC Pat. Litig.,
823 F.3d
607, 612 (Fed. Cir. 2016) (holding claims directed to an in-
eligible abstract idea, as opposed to an eligible improve-
ment in computer functionality).
And where, as here, “the abstract idea tracks the claim
language and accurately captures what the patent asserts
to be the focus of the claimed advance . . . , characterizing
the claim as being directed to an abstract idea is appropri-
ate.” Solutran, 931 F.3d at 1168 (cleaned up). Accordingly,
we agree with the district court and FlexSim that (trivial
differences in articulations aside) the claim is directed to
the abstract idea of using graphics instead of programming
to create object-oriented simulations.
Simio maintains that claim 1 is not directed to an ab-
stract idea because it “present[s] improvements to com-
puter-implemented simulation, resulting in improvements
in the computers’ capabilities.” Appellant’s Br. 33. To be
sure, “software can make patent-eligible improvements to
computer technology, and related claims are eligible as
long as they are directed to non-abstract improvements to
the functionality of a computer . . . itself.” Uniloc USA, Inc.
v. LG Elecs. USA, Inc.,
957 F.3d 1303, 1309 (Fed. Cir.
2020). But Simio has not shown how claim 1 is directed to
improving a computer’s functionality.
For example, Simio argues that the claim “improves on
the functionality of prior simulation systems through the
use of graphical or process modeling flowcharts with no
programming code required.” Appellant’s Br. 33. But this
argument does not explain how the computer’s functional-
ity is improved beyond the inherent improvement of the ex-
perience of a user who cannot (or maybe, would rather not)
use programming. In this case, “improving a user’s
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12 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
experience while using a computer application is not, with-
out more, sufficient to render the claims directed to an im-
provement in computer functionality.” Customedia Techs.,
LLC v. Dish Network Corp.,
951 F.3d 1359, 1365 (Fed. Cir.
2020) (citing Trading Techs. Int’l, Inc. v. IBG LLC,
921 F.3d
1084, 1092–93 (Fed. Cir. 2019)).
Simio also asserts that claim 1 improves a computer’s
functionality “by employing a new way of customized sim-
ulation modeling with improved processing speed.” Appel-
lant’s Br. 41. FlexSim responds, however, that this
allegedly improved “processing speed” is not that of the
computer; rather, it concerns only a user’s ability to build
(or “process”) simulation models faster by using graphics
instead of programming. See Appellee’s Br. 39. Simio does
not contest this characterization in its reply brief. See Re-
ply Br. 16–17. We reject Simio’s argument, because
“‘claiming the improved speed or efficiency inherent with
applying the abstract idea on a computer’ [is] insufficient
to render the claims patent eligible as an improvement to
computer functionality.” Customedia, 951 F.3d at 1364
(quoting Intell. Ventures I LLC v. Capital One Bank (USA),
792 F.3d 1363, 1367, 1370 (Fed. Cir. 2015)); see also BSG
Tech LLC v. BuySeasons, Inc.,
899 F.3d 1281, 1288
(Fed. Cir. 2018) (“These benefits, however, are not im-
provements to database functionality. Instead, they are
benefits that flow from performing an abstract idea in con-
junction with a well-known database structure.”).
Continuing with its “improves computer functionality”
argument, Simio marshals an array of cases in which we
have found eligibility at step one—including Enfish,
McRO, and KPN—and argues that they are analogous.
Each is readily distinguished. In Enfish, the claims were
eligible at step one because they were directed to a self-ref-
erential table that improved a computer’s functionality by
improving the way it stored and retrieved data in memory.
Enfish, LLC v. Microsoft Corp.,
822 F.3d 1327, 1336–39
(Fed. Cir. 2016); see BASCOM, 827 F.3d at 1349 (“The
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SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 13
Enfish claims, understood in light of their specific limita-
tions, were unambiguously directed to an improvement in
computer capabilities.”). In McRO, the claims were eligible
at step one because they used a “combined order of specific
rules” to achieve “an improved technological result.”
McRO, Inc. v. Bandai Namco Games Am. Inc.,
837 F.3d
1299, 1315–16 (Fed. Cir. 2016). And in KPN, the claims
were step-one eligible given their “specific implementation
of varying the way check data is generated,” which was a
technological improvement—indeed, an undisputed one—
over the prior art’s ability to detect systematic errors. Kon-
inklijke KPN N.V. v. Gemalto M2M GmbH,
942 F.3d 1143,
1150–51 (Fed. Cir. 2019). In each of these cases, the nature
of the claims read in light of their specifications confirmed
that they were directed to—were focused on—an actual
technological improvement. The same cannot be said here.
Simio finally emphasizes the executable-process limi-
tation and argues that it reflects an improvement to com-
puter functionality sufficient to survive step-one scrutiny:
an executable process to add a new behavior di-
rectly to an object instance of the one or more object
instances without changing the object definition
and the added new behavior is executed only for
that one instance of the object.
’468 patent claim 1.
We conclude that this limitation does not, by itself,
change the claim’s “character as a whole” from one directed
to an abstract idea to one that’s not. See Cellspin Soft, Inc.
v. Fitbit, Inc.,
927 F.3d 1306, 1316 (Fed. Cir. 2019) (“While
some of the limitations noted by [patentee] . . . may evi-
dence an inventive concept . . . , none of them change the
fact that the claims as a whole . . . are directed to an ab-
stract idea.”); BSG Tech, 899 F.3d at 1289 (“[M]erely recit-
ing components more specific than a generic computer does
not preclude a claim from being directed to an abstract
idea.”); cf. BASCOM, 827 F.3d at 1348 (noting that, in some
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14 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
cases involving computer-related claims, “there may be
close calls about how to characterize what the claims are
directed to,” and that in such cases “an analysis of whether
there are arguably concrete improvements in the recited
computer technology could take place under step two”
(quoting Enfish, 822 F.3d at 1339)).
The specification supports our conclusion. In stark
contrast to its heavy focus on the abstract idea of using
graphics instead of programming to create object-oriented
simulations, the specification dedicates relatively little at-
tention to the functionality reflected in the executable-pro-
cess limitation. Compare, e.g., ’468 patent col. 4 ll. 29–42
(noting that “the present invention makes model building
dramatically easier,” as “Simio™ objects” can be created
with graphics, requiring no programming), and id. at col. 4
ll. 47–50 (describing “this invention” as one that makes ob-
ject-building simpler, in that it “can be done by non-pro-
grammers”), and id. at col. 6 ll. 50–53 (describing “[t]he
present invention” as one requiring no programming to
build objects), and id. at col. 8 ll. 23–26 (“Unlike other ob-
ject-oriented simulation systems, however, the process of
building an object in the present invention is simple and
completely graphical. There is no need to write program-
ming code to create new objects.”), and id. at col. 8 ll. 60–62
(“In the present invention, a graphical modeling frame-
work is used to support the construction of simulation mod-
els designed around basic object-oriented principles.”), with
col. 15 l. 45–col. 16 l. 6 (describing the executable-process
limitation). This disparity—in both quality and quantity—
between how the specification treats the abstract idea and
how it treats the executable-process limitation suggests
that the former remains the claim’s focus. See Charge-
Point, 920 F.3d at 768 (finding that the patent’s identified
problem and the way it describes the invention “strongly
suggests that the abstract idea” identified in the claim
“may indeed be the focus of that claim”); TLI Commc’ns,
823 F.3d at 611 (observing that “the specification’s
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SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 15
emphasis that the present invention [relates to an abstract
concept] underscores that [the claim] is directed to an ab-
stract concept”).
Further supporting our conclusion is Simio’s own char-
acterization of the executable-process limitation. Accord-
ing to Simio, this limitation reflects that “a new behavior
can be added to one instance of a simulated object without
the need for programming.” Appellant’s Br. 6 (emphasis
added) (footnote omitted); see also Reply Br. 5 (describing
this limitation as reflecting an “executable process that ap-
plies the graphical process to the object (i.e., by applying
only to the object instance not to the object definition)” (em-
phasis added)). While somewhat more specific than the ab-
stract idea of using graphics instead of programming to
create object-oriented simulations, these characterizations’
close alignment with that idea supports our conclusion that
the focus of the claimed advance remains the abstract idea.
Accordingly, this limitation is better considered as a poten-
tially inventive application of the abstract idea at step two,
rather than as sufficient to shift the claim’s focus away
from the abstract idea at step one. See Cellspin, 927 F.3d
at 1316 (deferring to step two consideration of limitations
that did not “change the fact that the claims as a
whole . . . are directed to an abstract idea” (emphasis
added)); BASCOM, 827 F.3d at 1348–49 (deferring to step
two consideration of specific limitations where “the claims
and their specific limitations [did] not readily lend them-
selves to a step-one finding that they are directed to a
nonabstract idea”).
B
At step two, we “consider the elements of [the] claim
both individually and as an ordered combination to deter-
mine whether the additional elements transform the na-
ture of the claim into a patent-eligible application.” Alice,
573 U.S. at 217 (cleaned up). This “transformation into a
patent-eligible application requires more than simply
Case: 20-1171 Document: 41 Page: 16 Filed: 12/29/2020
16 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
stating the abstract idea while adding the words ‘apply it.’”
Id. at 221 (cleaned up). We are looking for an “inventive
concept”—“an element or combination of elements that is
sufficient to ensure that the patent in practice amounts to
significantly more” than a patent on the abstract idea it-
self. Id. at 217–18 (cleaned up). Whether the claim “sup-
plies an inventive concept that renders [it] ‘significantly
more’ than an abstract idea to which it is directed is a ques-
tion of law.” BSG Tech, 899 F.3d at 1290. And, critically,
“a claimed invention’s use of the ineligible concept to which
it is directed cannot supply the inventive concept that ren-
ders the invention ‘significantly more’ than that ineligible
concept.” Id.
Simio says the executable-process limitation provides
the necessary inventive concept. Appellant’s Br. 52 n.11.
But its statements at oral argument undermine this asser-
tion. When pressed as to whether the functionality re-
flected in the executable-process limitation was
conventional or known in object-oriented programming,
Simio confirmed that it was. Oral Arg. at 6:14–7:31. 5
Simio, however, distinguished the claimed invention by
saying that it “us[es] a visual flowchart . . . whereby [a] be-
havior can be modified, and whereby you do not, as a user,
need to know and understand and implement software pro-
gramming.” Id. at 7:32–56; see id. at 7:59–8:17 (“[T]he idea
of using programming to alter a behavior was known; the
idea of using a visual process . . . to modify the behavior as
part of that simulation system was not known.”). 6 In other
5 No. 20-1171, http://www.cafc.uscourts.gov/oral-ar-
gument-recordings (“Oral Arg.”).
6 These statements accord with Simio’s characteriza-
tions of this limitation in its briefing. Appellant’s Br. 6
(“[A] new behavior can be added to one instance of a simu-
lated object without the need for programming.” (emphasis
Case: 20-1171 Document: 41 Page: 17 Filed: 12/29/2020
SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 17
words, while Simio acknowledges that implementing the
executable process’s functionality through programming
was conventional or known, it contends that doing so with
graphics in a simulation provides the inventive concept
necessary to confer eligibility. But what Simio relies on is
just the abstract idea itself, which “cannot supply the in-
ventive concept that renders the invention ‘significantly
more’ than that [abstract idea]” at step two. BSG Tech,
899 F.3d at 1290; see ChargePoint, 920 F.3d at 774.
Simio stresses that the executable-process limitation is
novel. But “[e]ven assuming that is true, it does not avoid
the problem of abstractness.” Affinity Labs, 838 F.3d at
1263; Ultramercial, Inc. v. Hulu, LLC,
772 F.3d 709, 716
(Fed. Cir. 2014) (“That some of [these] steps were not pre-
viously employed in this art is not enough—standing
alone—to confer patent eligibility upon the claims . . . .”).
Indeed, “a claim for a new abstract idea is still an abstract
idea.” Synopsys, Inc. v. Mentor Graphics Corp.,
839 F.3d
1138, 1151 (Fed. Cir. 2016) (explaining that the search for
an inventive concept under § 101 is distinct from demon-
strating novelty under § 102).
And that’s really what we have: a claim directed to the
idea of using graphics instead of programming to create ob-
ject-oriented simulations—maybe a new idea, but still an
abstract one—and lacking any inventive concept, any
meaningful application of this idea, sufficient to save the
claim’s eligibility. See BSG Tech, 899 F.3d at 1290–91 (“If
a claim’s only ‘inventive concept’ is the application of an
abstract idea using conventional and well-understood tech-
niques, the claim has not been transformed into a patent-
added) (footnote omitted)); Reply Br. 5 (describing this lim-
itation as reflecting an “executable process that applies the
graphical process to the object (i.e., by applying only to the
object instance not to the object definition)” (emphasis
added)).
Case: 20-1171 Document: 41 Page: 18 Filed: 12/29/2020
18 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
eligible application of an abstract idea.”). We therefore af-
firm the district court’s dismissal.
II
We now address whether the district court properly de-
nied Simio leave to amend its complaint. We affirm the
court’s futility-based denial. We also affirm the denial on
the independent, alternative ground that Simio failed to
show good cause for its untimely motion for leave to amend.
A
The district court denied leave to amend as futile be-
cause it concluded that the new factual allegations in the
PAC did not save the asserted claims from ineligibility at
the pleadings stage. See, e.g., Jefferson Cnty. Sch. Dist. No.
R–1 v. Moody’s Inv.’s Servs., Inc.,
175 F.3d 848, 859
(10th Cir. 1999) (“A proposed amendment is futile if the
complaint, as amended, would be subject to dismissal.”).
We review the legal basis for the court’s futility conclusion
de novo. Johnson, 950 F.3d at 720–21.
Although we have already discussed the claims’ ineli-
gibility at length, Simio makes two eligibility arguments
particularly relevant to the denial of leave to amend. First,
it argues that the PAC’s new allegations were sufficient to
preclude dismissal for ineligibility. Second, it argues that
the district court erred by finding ineligibility without first
conducting claim construction. 7
7 Simio also argues that the district court should
have conducted claim construction before dismissing in the
first place, but we view its argument for claim construction
as more applicable to the denial of leave to amend, because
Simio raised and developed most of its claim-construction
arguments for the first time in its motion for leave to
amend. Because we conclude here that the district court
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SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 19
As to Simio’s first argument, we disagree that the
PAC’s new allegations are sufficient to preclude dismissal.
Simio directs us to allegations concerning the executable-
process limitation and its purported benefits, quoting one
such allegation in its entirety, which we deem illustrative:
[T]he claimed executable process improves the
functioning and operations of the computer, itself,
as the creation and modification of a simulation ob-
jects, and the addition of new behaviors to object
instances, can be done more efficiently and without
the need for software programming. In addition,
the claimed system requires less programming in
operation and results in faster processing speed.
Further, a user of the invention can more effi-
ciently customize simulation objects for use in the
user’s modeled system. Such customization, in
turn, provides a more useful and powerful simula-
tion model to the user.
Appellant’s Br. 50 (quoting J.A. 893 ¶ 100).
We disregard conclusory statements when evaluating
a complaint under Rule 12(b)(6). E.g., Khalik v. United Air
Lines,
671 F.3d 1188, 1191 (10th Cir. 2012). A statement
that a feature “improves the functioning and operations of
the computer” is, by itself, conclusory. And the allegations
in support of that conclusion just repackage assertions of
non-abstractness we’ve already rejected as a matter of
law—for example, the improved “efficiency” and “pro-
cessing speed” (again, Simio means the user’s speed, not
did not err in finding the claims ineligible without first con-
ducting claim construction, we need not reach FlexSim’s
contentions that Simio waived (or rather, forfeited) any
claim-construction arguments by not raising or adequately
developing them before the district court ruled on the mo-
tion to dismiss.
Case: 20-1171 Document: 41 Page: 20 Filed: 12/29/2020
20 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
the computer’s) inherent with applying the abstract idea of
using graphics instead of programming to create object-ori-
ented simulations. See Customedia, 951 F.3d at 1364
(“[C]laiming the improved speed or efficiency inherent with
applying the abstract idea on a computer [is] insufficient to
render the claims patent eligible as an improvement to
computer functionality.” (cleaned up)); Intell. Ventures I,
792 F.3d at 1370 (“[O]ur precedent is clear that merely add-
ing computer functionality to increase the speed or effi-
ciency of the process does not confer patent eligibility on an
otherwise abstract idea.”). This is therefore not a case in
which a complaint’s allegations “prevent resolving the eli-
gibility question as a matter of law.” Aatrix, 882 F.3d
at 1125.
Simio’s second argument—that the district court erred
by determining ineligibility without first conducting claim
construction—is also unpersuasive. The main problem
with this argument is that Simio has not explained how it
might benefit from any particular term’s construction un-
der an Alice § 101 analysis. Rather, Simio limits its specific
claim-construction arguments to showing that claim 1 is to
a statutorily eligible “machine.” See, e.g., Appellant’s
Br. 21–23, 26–30. We therefore see no error in the district
court’s determining ineligibility without first conducting
claim construction. See Elec. Commc’n Techs., LLC v.
ShoppersChoice.com, LLC,
958 F.3d 1178, 1184 (Fed. Cir.
2020) (concluding that the district court properly resolved
patent eligibility at the pleadings stage without first con-
ducting claim construction where the patentee did not ex-
plain how any term’s construction “could affect the
analysis”).
B
We also affirm the district court’s denial of leave for a
different reason: Simio failed to show good cause for seek-
ing leave to amend only after the scheduling order’s dead-
line. Although the district court did not reach this issue,
Case: 20-1171 Document: 41 Page: 21 Filed: 12/29/2020
SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 21
we may affirm on “any grounds for which there is a record
sufficient to permit conclusions of law, even grounds not
relied upon by the district court.” Lambertsen v. Utah Dep’t
of Corr.,
79 F.3d 1024, 1029–30 (10th Cir. 1996) (quoting
United States v. Sandoval,
29 F.3d 537, 542 n.6 (10th Cir.
1994)) (affirming denial of motion to amend complaint be-
cause, among other things, plaintiff failed to provide an ad-
equate explanation for its delay in seeking amendment);
see Johnson, 950 F.3d at 720 (“Although the district court
justified its denial of leave to amend on other bases, we
may affirm on any ground supported by the record . . . .”).
Here, the record supports concluding that Simio failed to
show good cause for its requested post-deadline amend-
ment.
In the Tenth Circuit, parties seeking leave to amend
after a scheduling-order deadline must demonstrate good
cause under Rule 16(b)(4). 8 Gorsuch, Ltd., B.C. v. Wells
Fargo Nat’l Bank Ass’n,
771 F.3d 1230, 1240 (10th Cir.
2014); see Fed. R. Civ. P. 16(b)(4) (providing that a sched-
uling order “may be modified only for good cause and with
the judge’s consent”). Satisfying this standard “requires
the movant to show the scheduling deadlines cannot be met
despite the movant’s diligent efforts.” Gorsuch, 771 F.3d
at 1240 (cleaned up). The standard may be satisfied if, for
example, a movant learns new information through discov-
ery or the underlying law has changed. Id. Ultimately,
demonstrating good cause requires the movant to “provide
an adequate explanation for any delay.” Tesone v. Empire
Mktg. Strategies,
942 F.3d 979, 988 (10th Cir. 2019)
8 Such parties must also satisfy Rule 15(a)’s stand-
ard, but because we find that Simio failed to show good
cause under Rule 16(b)(4), we need not consider whether it
satisfied Rule 15(a). See Birch v. Polaris Indus., Inc.,
812 F.3d 1238, 1247–49 (10th Cir. 2015).
Case: 20-1171 Document: 41 Page: 22 Filed: 12/29/2020
22 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS
(quoting Husky Ventures, Inc. v. B55 Invs., Ltd.,
911 F.3d
1000, 1020 (10th Cir. 2018)).
Simio fails to show why it could not have met the
amendment deadline with diligence. It concedes that the
PAC contained no facts that couldn’t have been alleged be-
fore the deadline. Oral Arg. at 10:08–20; see Tesone,
942 F.3d at 991 (affirming denial of leave to amend based
on lack of good cause where the movant admitted she “was
aware of the facts on which the amendment was based for
some time prior to the filing of the motion to amend” (quot-
ing Fed. Ins. Co. v. Gates Learjet Corp.,
823 F.2d 383, 387
(10th Cir. 1987))). Nor has Simio demonstrated any change
of law that might justify its belated amendment. We also
cannot say that “the need for more time was neither fore-
seeable nor [the movant’s] fault.” See Tesone, 942 F.3d
at 988 (quoting 3 James Wm. Moore et al., Moore’s Federal
Practice § 16.14[1][b] (3d ed. 2019)). Here, Simio agreed to
the deadline in the face of FlexSim’s pending motion to dis-
miss based on ineligibility.
Attempting to justify its delay, Simio directs us to a
footnote tucked into its motion-to-dismiss opposition,
which said: “Simio also reserves the right to amend its
[c]omplaint in order to more fully develop these issues.”
J.A. 175 n.8 (citing Aatrix,
882 F.3d 1121). According to
Simio, this footnote shows that it “acted with diligence in
reserving its right to amend.” 9 Reply Br. 20. We disagree
9 It is unclear what “right” to amend Simio was re-
serving at this point. Although Rule 15 gives plaintiffs the
right to amend their complaint “once as a matter of course”
within 21 days after service of a Rule 12(b) motion or an
answer (whichever is earlier), see Fed. R. Civ. P.
15(a)(1)(B), FlexSim served both its Rule 12(b)(6) motion
and answer (in that order) on December 21, 2018. This 21-
day period therefore expired well before Simio’s Febru-
ary 8, 2019 motion-to-dismiss opposition.
Case: 20-1171 Document: 41 Page: 23 Filed: 12/29/2020
SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 23
that this footnote helps Simio. Initially, we note that the
Tenth Circuit takes a dim view of “drive-by requests to
amend the complaint,” having “repeatedly held that a bare
request to amend in response to a motion to dismiss is in-
sufficient to place the court and opposing parties on notice
of the plaintiff’s request to amend and the particular
grounds upon which such a request would be based.” John-
son, 950 F.3d at 721 (cleaned up). Here, we question
whether Simio’s reservation of its purported right even
arose to the level of such a request. But assuming it did,
Simio has supplied no authority suggesting that this kind
of drive-by request insulates a party from the consequences
of missing the amendment deadline, or that it otherwise
helps a party show good cause. If anything, Simio’s pre-
deadline recognition of an amendment’s potential impact
seems to cut against its showing of good cause for missing
the deadline. Cf. Tesone, 942 F.3d at 991 (weighing against
the movant her prior acknowledgment that she might need
to add an additional claim).
Having heard from Simio no adequate explanation for
its delay in seeking amendment, we affirm the district
court’s denial of leave to amend on the independent, alter-
native ground that Simio failed to show good cause under
Rule 16(b)(4).
CONCLUSION
We have considered Simio’s remaining arguments but
find them unpersuasive. For the foregoing reasons, we af-
firm the district court’s dismissal and denial of leave to
amend the complaint.
AFFIRMED
