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, Pittsburgh, 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. 

 ______________________

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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 because 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 motion for leave to amend. We affirm.

BACKGROUND

I

The ’468 patent is titled “System and Method for Creating Intelligent Simulation Objects Using Graphical Process 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 existed since the 1960s, id. at col. 2 ll. 10–19, it states that

earlier object-oriented simulation products were “programming-based tools” that were “largely shunned by practitioners 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 interfaces 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-orientation. 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, SimioTM objects can be created with 

simple graphical process flows that require no programming.”), 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 simulation 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 representative for purposes of our eligibility analysis. See 

Elec. Power Grp., LLC v. Alstom S.A., 830 F.3d 1350, 1352 

(Fed. Cir. 2016).

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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 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.

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 containing an object definition for “Poodle” and poodles Sam 

and Fred, a user might independently change Sam’s behavior (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 complaint under Federal Rule of Civil Procedure 12(b)(6), arguing 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 report to the district court agreeing to a March 15, 2019 deadline 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 stating: “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 ineligible. 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 decadesold 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 showing no inventive concept or alteration of computer functionality sufficient to transform the system into a patentCase: 20-1171 Document: 41 Page: 5 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 intervening 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 ineligible for not falling into any of § 101’s four categories of 

eligible subject matter: “process,” “machine,” “manufacture,” 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, however, because even assuming the claims fall into the “machine” 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 nonetheless be ineligible for claiming one of these exceptions).

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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. Diamond, 957 F.3d 1098, 1100 (10th Cir. 2020) (quoting Peterson 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) (reconsideration); 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 denials for abuse of discretion, but when leave to amend is denied 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 Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1342 (Fed. Cir. 2018). 

We review the district court’s ultimate conclusion on patent eligibility de novo. Id. A patent may be determined

ineligible at the Rule 12(b)(6) stage “when there are no factual allegations that, taken as true, prevent resolving the 

eligibility question as a matter of law.” Aatrix, 882 F.3d 

at 1125.

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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 provision, however, contains longstanding judicial exceptions, 

which provide that laws of nature, natural phenomena, 

and abstract ideas are not eligible for patenting.” ChargePoint, 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 “determine whether the claim[] at issue [is] directed to” an abstract idea. Alice, 573 U.S. at 218. If so, we move to step 

two, where we “examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient 

to ‘transform’ the claimed abstract idea into a patent3 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 argument 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) reconsideration 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. Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 

2000). Simio has shown none of these—much less explained how the district court abused its discretion by not 

finding them. Therefore, to the extent Simio separately appeals the district court’s denial of reconsideration, we affirm.

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SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS 9

eligible application.” Id. at 221 (quoting Mayo Collaborative 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 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.”); see id. at col. 4 ll. 39–42 

(“Unlike existing object-oriented tools that require programming to implement new objects, SimioTM 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-programmers, this invention can bring an improved object-oriented modeling approach to a much broader cross-section 

of users.”), 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.”), 

col. 8 ll. 60–62 (“In the present invention, a graphical modeling framework is used to support the construction of simulation models designed around basic object-oriented 

principles.”), col. 9 l. 67–col. 10 l. 3 (“In the present invention, 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—particularly when read in light of the above. See TecSec, Inc. 

v. Adobe Inc., 978 F.3d 1278, 1292 (Fed. Cir. 2020) (observing that the directed-to inquiry focuses on the claim language 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 processes,” 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 processes 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 alreadywidespread practice of using graphics instead of programming 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) (citing 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”). Indeed, 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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or generic technology [i.e., graphical processing generally] 

in a . . . well-known environment [i.e., object-oriented simulations], 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 ineligible abstract idea, as opposed to an eligible improvement 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 appropriate.” 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 abstract idea because it “present[s] improvements to computer-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 functionality is improved beyond the inherent improvement of the experience 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, without more, sufficient to render the claims directed to an improvement 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 simulation modeling with improved processing speed.” Appellant’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 Reply 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 improvements to database functionality. Instead, they are 

benefits that flow from performing an abstract idea in conjunction 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-referential 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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Enfish claims, understood in light of their specific limitations, 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. Koninklijke 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 limitation and argues that it reflects an improvement to computer functionality sufficient to survive step-one scrutiny:

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.

’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 evidence an inventive concept . . . , none of them change the 

fact that the claims as a whole . . . are directed to an abstract idea.”); BSG Tech, 899 F.3d at 1289 (“[M]erely reciting 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 attention to the functionality reflected in the executable-process limitation. Compare, e.g., ’468 patent col. 4 ll. 29–42 

(noting that “the present invention makes model building 

dramatically easier,” as “SimioTM objects” can be created 

with graphics, requiring no programming), and id. at col. 4 

ll. 47–50 (describing “this invention” as one that makes object-building simpler, in that it “can be done by non-programmers”), 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 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.”), and id. at col. 8 ll. 60–62

(“In the present invention, a graphical modeling framework is used to support the construction of simulation models 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 ChargePoint, 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 abstract concept”).

Further supporting our conclusion is Simio’s own characterization of the executable-process limitation. According 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 applies the graphical process to the object (i.e., by applying 

only to the object instance not to the object definition)” (emphasis added)). While somewhat more specific than the abstract 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 potentially 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 themselves 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 determine whether the additional elements transform the nature 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 

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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 itself. Id. at 217–18 (cleaned up). Whether the claim “supplies an inventive concept that renders [it] ‘significantly 

more’ than an abstract idea to which it is directed is a question 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 renders 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 assertion. When pressed as to whether the functionality reflected 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] behavior can be modified, and whereby you do not, as a user, 

need to know and understand and implement software programming.” 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-argument-recordings (“Oral Arg.”).

6 These statements accord with Simio’s characterizations of this limitation in its briefing. Appellant’s Br. 6 

(“[A] new behavior can be added to one instance of a simulated object without the need for programming.” (emphasis 

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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 inventive 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 previously 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 demonstrating novelty under § 102).

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. 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 techniques, the claim has not been transformed into a patentadded) (footnote omitted)); Reply Br. 5 (describing this limitation 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)).

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18 SIMIO, LLC v. FLEXSIM SOFTWARE PRODUCTS

eligible application of an abstract idea.”). We therefore affirm the district court’s dismissal.

II

We now address whether the district court properly denied 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 because 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’ ineligibility 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 executableprocess 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 objects, 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 efficiently customize simulation objects for use in the 

user’s modeled system. Such customization, in 

turn, provides a more useful and powerful simulation 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 “processing speed” (again, Simio means the user’s speed, not

did not err in finding the claims ineligible without first conducting 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 motion to dismiss. 

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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-oriented 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 adding computer functionality to increase the speed or efficiency 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 eligibility 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 under 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 conducting claim construction where the patentee did not explain 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 seeking leave to amend only after the scheduling order’s deadline. Although the district court did not reach this issue, 

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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 because, among other things, plaintiff failed to provide an adequate 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 amendment.

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 scheduling 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 discovery 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 standard, 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).

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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 before 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” (quoting 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 foreseeable 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 dismiss 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 reserving 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 February 8, 2019 motion-to-dismiss opposition.

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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 insufficient 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.” Johnson, 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 predeadline 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, alternative 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 affirm the district court’s dismissal and denial of leave to 

amend the complaint.

AFFIRMED

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