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.
Slip Op.
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.
Just think the projection is that about 40 million jobs in the USA will be displace by 2040 by AI and computers…errrr…excuse me I mean by abstractions.
Not sure that I see your point with any type of employment evolution.
Are you saying that we should be taking off our sabots and throwing them into the ‘machines?’
Are you saying that out legislative ‘judicial rewriters’ are attempting to do just that by not providing innovation protection to the type of innovation of the Kondratiev fifth wave? (see link to en.wikipedia.org )
I am saying that it is ridiculous not to grant patent rights to innovations that are replacing people en mass.
I think too that the patent system is warping the innovation in that the foul one that just died had said that patents were not for organizing human behavior.
Those that seem to think “not for human ____” simply are without a clue as to what the utility aspect underlying ALL patent law.
The claim:
1. A computer-based system for developing simulation models on a physical computing device, the system comprising:
one or more graphical processes;
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 assigning 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 definition 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 directly 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.
The analysis:
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.”
Is this the verboten ‘point of novelty from the claim? “an executable process to add a new behavior directly 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.”
“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.”
Would attaching an appendix to the patent specification listing the source code for achieving this “abstract idea” transform the ‘abstract’ into something specifically how-we-do-it saving the claim from the 101?
I guess at this point we should point out the obvious: The magical expedience of the 101 is punching out the patent on the pleadings 12b6, and not having to bother with the 102 (what it sounds like the court is actually doing here) e.g., a 6 page markman/summary judgment motion then order. Unless of course, this: “Simply applying the already-widespread practice of using graphics instead of programming to the environment of object-oriented simulations . . .” is not true. But, we shall never know, that because that is not part of the record. All we have is [the set up] ” . . . is no more than an abstract idea.” In other words, all we have is the ipse dixit. and then review of the ipse dixit with more ipse dixit.
+1
Unless this source code is in the claims, why would it matter? There is no inherent reason why a patent couldn’t disclose an invention yet claim an idea.
ALL claims are nothing more than an idea.
Typically, the idea is an idea of a new and useful process, machine, manufacture, or composition of matter, or of a new and useful improvement thereof.
It is when this idea (magically) becomes an (undefined) ‘abstract’ idea that We have run afoul of the legislating from the Bench.
+1
Proper decision was made today. Read the patent. The only hook available was to attempt to direct the patent to a machine where, other than referencing the software runs on a computer, there is not a single paragraph, sentence, or inference explaining how the invention improves the machine. This patent should have never seen the light of day.
Ends do not justify the means.
Do not confuse your own view of ‘should – based on ‘hook” with the legal point that brings umbrage here.
Yet another example of the incoherence of § 101 abstract-idea jurisprudence. Potter Stewart, J., please call your office (from wherever you are).
They know it when they see it is a bad way to fly.
These claims should be ineligible, but not because “User Experience” is not “computer functionality” (!)
“User Experience” can mean lots of things, but in this instance, the useful result of the method is information (the process flow map), which when consumed by human beings, is intrinsically abstract.
The failure to sufficiently define “process” renders 101 unconstitutionally vague. The use of 12(b)6 to construe the results of process inventions is a failure of due process.
Both problems can be mitigated with relative ease.
“The failure to sufficiently define “process” renders 101 unconstitutionally vague”
You keep on wanting to NOT understand the language of the terrain, and yet get up on your soap box and preach…
“The use of 12(b)6 to construe the results of process inventions is a failure of due process.”
Please recognize that you are attempting to use terms of art in manners that the terms simply do not apply to.
The failure to sufficiently define “process” renders 101 unconstitutionally vague.
That goes a bit too far. To be unconstitutionally vague, the statute must be unclear even in view of the ordinary canons of statutory construction. Moreover, one of the canons of construction is that Congress is presumed to be familiar with the jurisprudence that precedes legislation. Therefore, it is perfectly sensible for the Court to conclude that the sufficiently definite meaning of “process” is “whatever We and Our predecessor courts have meant by the term in Our various rulings over the last several centuries.”
The real problem is not that the statute is vague. The real problem is that the Court is too pig-headed to admit that the proper construction of “process” is embodied in the machine-or-transformation test.
“Court is too pig-headed to admit that the proper construction of “process” is embodied in the machine-or-transformation test.”
That is most assuredly NOT correct.
Justice was done. FlexSim is a much better and flexible solution.
Ends do not justify the means.
Do not confuse your own view of ‘better and flexible’ with the legal point that brings umbrage here.
The real problem is that the Court is too pig-headed to admit that the proper construction of “process” is embodied in the machine-or-transformation test
Yes, the Bilski Court -helpfully- said:
Concerns about attempts to call any form of human activity a “process” can be met by making sure the claim meets the requirements of §101
Since that means nothing, they tried again in the next para:
Adopting the machine-or-transformation test as the sole test for what constitutes a “process” (as opposed to just an important and useful clue) violates these statutory interpretation principles. Section 100(b) provides that “[t]he term `process’ means process, art or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.” The Court is unaware of any “`ordinary, contemporary, common meaning,'” Diehr, supra, at 182, of the definitional terms “process, art or method” that would require these terms to be tied to a machine or to transform an article.
Again, very very helpful and not at all too vague to be constitutional.
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