by Dennis Crouch
Simio, LLC v. FlexSim Software (Fed. Cir. 2020) (opinion by Chief Judge Prost and joined by Judges Clevenger and Stoll).
In this case, the Federal Circuit has affirmed the lower court’s summary dismissal of Simio’s infringement lawsuit on eligibility grounds. The appellate panel also upheld the lower court’s refusal to permit the patentee to amend its complaint — seeing the proposed amendment as “futile.”
Dennis Pegden has received many awards for his work developing software (and programming languages) for simulating real-life processes in order to optimize decisionmaking; perform risk analysis, etc. He was a professor who then developed his own company that was bought-out by Rockwell. Later, he formed the new company Simio, that owns the patent at issue here: U.S. Patent No. 8,156,468. The ‘468 patent is effectively an object-oriented simulation programming tool that allows users to develop simulation models of process flows using a graphical framework.
In December 2018, Simio sued its competitor FlexSim for infringement of the ‘468 patent; FlexSim responded with its successful motion-to-dismiss on eligibility grounds. The district court found the claims directed to the unpatentable abstract idea of the “decades old computer programming practice of substituting text-based coding with graphical processing.”
On appeal, the Federal Circuit affirmed — finding that the claims were indeed directed to transitioning from text-based coding to icon-based. In making its “directed to” conclusion, the court repeatedly quoted the specification’s explanations that
[A]n object in the present invention is simple and completely graphical. There is no need to write programming code to create new objects. . . . Simio™ objects can be created with simple graphical process flows that require no programming. . . . [T]his invention can bring an improved object-oriented modeling approach to a much broader cross-section of users. . . . [etc.]
Quoting the patent specification. And, the court agreed that “Simply applying the already-widespread practice of using graphics instead of programming to the environment of object-oriented simulations is no more than an abstract idea.”
Prior decisions have found innovations that improve computer functionality to be non-abstract (and thus patent eligible). Here, the court admitted that the claimed innovation may well improve the ability of many individuals to create simulations, but found that such a usability improvement does not count as an improvement to the computer’s functionality.
[Simio’s] argument does not explain how the computer’s functionality is improved beyond the inherent improvement of the experience of a user who cannot (or maybe, would rather not) use programming.
Slip Op. Quoting Customedia, the court explained its position that “user experience” is not “computer functionality.”
Simio pointed to particular improvements of user behavior offered by its invention such as faster simulation model development (a major selling point of the products in this area). Again, the court found that an abstract idea is still abstract, even if done quickly.
In Alice Step 2, the court admitted that the claim may include novel features, but those novel features are the abstract idea.
And that’s really what we have: a claim directed to the idea of using graphics instead of programming to create object 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.
The rules of civil procedure allow for flexible pleading. Rule 8 simply requires “a short and plain statement of the claim.” And, defects in a complaint are regularly fixed via amendment. The rules of Civil Procedure require courts to “freely give leave” to amend pleadings “when justice so requires.”
Here, the district court refused to allow the patentee to amend its pleadings with specific allegations regarding the uniqueness of various claim elements. On appeal, the Federal Circuit affirmed — finding that the proposed amendment were “conclusory statements” to be disregarding when ruling on a Rule 12(b)(6) motion.
Simio had delayed in its request to amend until after the deadline set by the district court in the R. 16(b) scheduling order. On appeal, the Federal Circuit found that the district court was within its rights to deny amendments after that deadline absent presentation of good cause. Here, the court’s granting of the motion-to-dismiss didn’t count as good cause.