Swarm Technology LLC v. AMAZON.COM, INC., AMAZON WEB SERVICES, INC., Cross-Appellants 2023-2323, 2024-1095…

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SWARM TECHNOLOGY LLC,
Appellant
v.
AMAZON.COM, INC., AMAZON WEB SERVICES,
INC.,
Cross-Appellants
______________________
2023-2323, 2024-1095
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. IPR2022-
00283, IPR2022-00633.
______________________
Decided: June 30, 2025
______________________
MEREDITH LEIGH MARTIN ADDY, AddyHart P.C., At-
lanta, GA, argued for appellant. Also represented by
DANIEL JOSEPH ANDERSON, CHRISTINE N. JONES, MICHAEL
K. KELLY, Newman Jones PLLC, Scottsdale, AZ.
ADAM MICHAEL GREENFIELD, White & Case LLP, Wash-
ington, DC, argued for cross-appellants. Also represented
by MARK S. DAVIES; HALLIE ELIZABETH KIERNAN, New
York, NY.
Case: 23-2323 Document: 58 Page: 1 Filed: 06/30/2025

-- 1 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 2
______________________
Before TARANTO, STOLL, and STARK, Circuit Judges.
STARK, Circuit Judge.
In Final Written Decisions (“FWD”) issued by the Pa-
tent Trial and Appeal Board (“Board”) in two related inter
partes review (“IPR”) proceedings, the Board found that
Petitioner Amazon.com Inc. (“Amazon”) proved unpatenta-
ble some, but not all, claims of two patents owned by
Swarm Technology LLC (“Swarm”). Swarm appeals the
findings of unpatentability while Amazon cross-appeals
the findings that it failed to prove some claims unpatenta-
ble. Swarm also appeals the denial of its contingent motion
to amend to add substitute claims. For the reasons that
follow, we affirm the Board in full.
I
Swarm’s U.S. Patent No. 9,852,004 (“’004 patent”) is
entitled “System and Method for Parallel Processing Using
Dynamically Configurable Proactive Co-Processing Cells.”
J.A. 143. Its U.S. Patent No. 10,592,275 (“’275 patent”) is
entitled “System and Method for Swarm Collaborative In-
telligence Using Dynamically Configurable Proactive Au-
tonomous Agents.” J.A. 159. Both the ’004 and ’275
patents share a nearly identical specification and claim pri-
ority to U.S. Patent 9,146,777, which was filed in 2013. In
general, both patents are directed to parallel multipro-
cessing computer architecture used for completing compu-
ting tasks.
In parallel or multi-core processing, a central pro-
cessing unit (“CPU”) breaks down large computational
tasks into individual blocks of computations; the CPU then
distributes the tasks among two or more processors. More
particularly, in the ’004 patent, a CPU places tasks into a
task pool. Co-processors then retrieve a task, complete it,
notify the task pool the task was completed, and then
Case: 23-2323 Document: 58 Page: 2 Filed: 06/30/2025

-- 2 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 3
“ping[] the task pool until another task becomes available.”
J.A. 151 (’004 patent 2:16-17). Each co-processor can in-
clude “an agent that interrogates the task pool to seek a
task to perform.” J.A. 151 (’004 patent 2:23-24). “[T]he
term agent refers to a software module, analogous to a net-
work packet, associated with a co-processor that interacts
with the task pool to thereby obtain available tasks which
are appropriate for that co-processor cell.” J.A. 152 (’004
patent 3:13-16). In one embodiment, the agent “is gener-
ally analogous to a data frame in the networking sense, in
that an agent may be equipped with a source address, a
destination address, and a payload.” J.A. 154 (’004 patent
8:30-34).
Claim 3 of the ’004 patent is representative of the is-
sues presented in this appeal and recites:
A processing system, comprising:
a task pool;
a controller configured to populate the task pool
with a plurality of first tasks and a plurality of sec-
ond tasks;
a first co-processor configured to successively: re-
trieve a first task from the task pool; deliver the
first task to the first co-processor; process the first
task; generate first resulting data; and update the
task pool to reflect completion of the first task, all
without any communication between the first co-
processor and the controller; and
a second co-processor configured to successively:
retrieve a second task from the task pool; deliver
the second task to the second co-processor; process
the second task; generate second resulting data;
and update the task pool to reflect completion of the
second task, all without any communication be-
tween the second co-processor and the controller;
Case: 23-2323 Document: 58 Page: 3 Filed: 06/30/2025

-- 3 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 4
wherein:
the processing system is configured to dynamically
accept the first co-processor, the second co-proces-
sor, and an additional co-processor into the pro-
cessing system on a plug-and-play basis without
any communication with the controller;
the first task includes indicia of a first task type,
the first co-processor is configured to perform tasks
of the first type, and the first agent is configured to
search the task pool for a task of the first type;
the second task includes indicia of a second task
type, the second co-processor is configured to per-
form tasks of the second type, and the second agent
is configured to search the task pool for a task of the
second type;
the first co-processor includes a first agent compris-
ing a first source address, a first destination ad-
dress, and a first payload; and
the second co-processor includes a second agent
comprising a second source address, a second des-
tination address, and a second payload;
and further wherein:
when the first agent is retrieving the first task from
the task pool, the first source address corresponds
to an address associated with the first co-processor,
the first destination address corresponds to an ad-
dress associated with the task pool, and the first
payload includes a first function which the first co-
processor is configured to perform;
when the first agent is returning from the task
pool, the first source address is the task pool’s ad-
dress, the first destination address is the first co-
processor’s address, and the first payload includes
a descriptor of the first task;
Case: 23-2323 Document: 58 Page: 4 Filed: 06/30/2025

-- 4 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 5
when the second agent is retrieving the second task
from the task pool, the second source address cor-
responds to an address associated with the second
co-processor, the second destination address corre-
sponds to an address associated with the task pool,
and the second payload includes a second function
which the second co-processor is configured to per-
form; and
when the second agent is returning from the task
pool, the second source address is the task pool’s
address, the second destination address is the sec-
ond co-processor’s address, and the second payload
includes a descriptor of the second task.
J.A. 157-58 (’004 patent 14:42-15:36) (emphasis added).
The ’275 patent contains a similar limitation in inde-
pendent claim 6, which recites a system within which a
“first agent is configured to search the task pool for a task
of the first type” and a “second agent is configured to search
the task pool for a task of the second type.” J.A. 174 (’275
patent 15:43-44, 15:47-48). The claims of the ’275 patent
additionally require that the co-processors are configured
to “proactively retrieve” a task from the task pool. See J.A.
173-74. According to the specification, the term “proactive”
“suggests that each co-processor may be configured (e.g.,
programmed) to periodically send an agent to monitor the
task pool for available tasks appropriate to that co-proces-
sor.” J.A. 151 (’004 patent 2:40-43).
On Amazon’s petitions, the Board instituted IPRs chal-
lenging all claims of the ’004 and ’275 patents. The grounds
for the petition included that certain claims are obvious
over United States Patent Application Publication No.
2007/0124363 (“Lurie”) and a 1980 publication by Digital
Equipment Corporation, Intel, and Xerox entitled “The
Ethernet-A Local Area Network, Data Link Layer and
Physical Layer Specifications” (“Ethernet”). J.A. 350-53,
1219, 1286, 4275, 4278-79.
Case: 23-2323 Document: 58 Page: 5 Filed: 06/30/2025

-- 5 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 6
Lurie “allows the use of instrument-based distributed
system[s] on a network to conduct the job and facilitate de-
creasing the time for executing the job.” J.A. 1247 (¶ 5).
As shown below in Lurie’s Figure 3B, Lurie allows for the
distribution of tasks in an automatic distribution mode
where a technical computing client [250] puts tasks into an
automatic task distribution mechanism [260], i.e., a task
pool. Lurie’s workers [270] take a task from the task pool,
perform the task, and then return the result of the task to
the task pool. J.A. 1253 (¶ 72).
J.A. 1226 (Figure 3B).
The Ethernet publication deals primarily with how de-
vices are distributed and connected on a local area network
(“LAN”), disclosing a standard for establishing a network
that provides “high speed data exchange among computers
within a . . . geographic area.” J.A. 1296. Ethernet is “in-
tended primarily for use in such areas as . . . distributed
data processing.” J.A. 1296. Data is sent, via data frames,
through the LAN, with a protocol for including information
for the destination address, source address, type, data, and
error checking sequence.
Case: 23-2323 Document: 58 Page: 6 Filed: 06/30/2025

-- 6 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 7
The Board found that Lurie in view of Ethernet, along
with other references not at issue on appeal, taught the
limitations of all claims (1-12) of the ’004 patent and ren-
dered each of them obvious.1 Swarm moved to amend to
add substitute claims 13 and 14. The Board denied the mo-
tion because the limitation being added in the proposed
substitute claims – “dynamically accept[ing]” an “addi-
tional co-processor into the processing system on a plug-
and-play basis without any communication with the con-
troller” – lacked support in the original application. J.A.
78 (alteration in original; emphasis omitted). The Board
further determined that the substitute claims were di-
rected to nonpatentable subject matter under 35 U.S.C.
§ 101. In the IPR concerning the ’275 patent, the Board
construed the term “proactively” and, applying that con-
struction, found Amazon failed to prove that any of the
challenged claims (1-17) were unpatentable.
Swarm timely appealed the Board’s FWD in connection
with the ’004 patent IPR and Amazon did so in connection
with the ’275 patent IPR. We have jurisdiction under 28
U.S.C. § 1295(a)(4)(A).
II
“The Board’s claim constructions . . . are determina-
tions of law reviewed de novo where based on intrinsic evi-
dence, with any Board findings about facts extrinsic to the
patent record reviewed for substantial-evidence support.”
St. Jude Med., LLC v. Snyders Heart Valve LLC, 977 F.3d
1232, 1238 (Fed. Cir. 2020). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion.” IOENGINE, LLC v. In-
genico Inc., 100 F.4th 1395, 1402 (Fed. Cir. 2024) (internal
quotation marks omitted). “[T]he possibility of drawing
1 Swarm does not contest the Board’s determination
that claim 1 of the ’004 patent is unpatentable.
Case: 23-2323 Document: 58 Page: 7 Filed: 06/30/2025

-- 7 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 8
two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being sup-
ported by substantial evidence.” Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966).
“The ultimate question of obviousness is a legal ques-
tion that we review de novo with underlying factual find-
ings that we review for substantial evidence.” Roku, Inc.
v. Universal Elecs., Inc., 63 F.4th 1319, 1324 (Fed. Cir.
2023). The underlying factual findings include: the scope
and content of the prior art; the differences between the
prior art and the claims at issue; the level of ordinary skill
in the pertinent art; along with secondary considerations
such as commercial success, long felt but unsolved needs,
and failure of others. See Graham v. John Deere Co., 383
U.S. 1, 17-18 (1966).
Written description under 35 U.S.C. § 112 is a question
of fact reviewed for substantial evidence. Blue Calypso,
LLC v. Groupon, Inc., 815 F.3d 1331, 1344 (Fed. Cir. 2016).
III
Swarm appeals the Board’s finding that the combina-
tion of Lurie and Ethernet discloses the “agent . . . config-
ured to search the task pool” limitation and its related
conclusion that Lurie and Ethernet render claims 2-12 of
the ’004 patent obvious. Swarm also appeals the Board’s
denial of its motion to amend to add substitute claims 13
and 14 to the ’004 patent. We address both contentions be-
low before turning to Amazon’s cross appeal of the Board’s
conclusion that claims 1-17 of the ’275 patent were not un-
patentable.
A
The Board had substantial evidence to support its find-
ing that the claim limitation “agent . . . configured to search
the task pool,” which appears in claims 2-12 of the ’004 pa-
tent and claims 3 and 6-10 of the ’275 patent, is disclosed
by the combination of Lurie and Ethernet. The Board
Case: 23-2323 Document: 58 Page: 8 Filed: 06/30/2025

-- 8 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 9
explained that the “data frames sent by the [technical com-
puting workers] in Lurie as modified by Ethernet . . . act as
agents which search the [automatic task distribution]
[m]echanism [of Lurie] for tasks that the [technical compu-
ting workers] can perform.” J.A. 48. The Board concluded
it would have been obvious to modify Lurie to use Ether-
net’s “data frame as an agent,” resulting in the worker of
Lurie searching the task pool via that agent, as Lurie’s
worker “selects or determines which tasks it will perform”
and Lurie’s “system can determine or select the technical
comput[ing] worker . . . to work on a task by operational
and/or performance characteristics of the technical compu-
ting worker.” J.A. 39-40 (citing Lurie ¶ 81; emphasis omit-
ted). The Board concluded that because Lurie teaches that
the workers are not homogenous, and instead, can differ in
capabilities, a skilled artisan would have considered it ob-
vious to allow an agent to rely on a task description speci-
fying the necessary capabilities a worker needs to have to
complete a type of task in order to search for the corre-
sponding types of tasks the worker can perform. J.A. 39,
41. The Board found a “person having ordinary skill in the
art would have understood that this [modification] would
allow the agent to search for tasks that the [worker] can
perform . . . [to] maximize the efficiency of the system.” J.A.
41.
Swarm levels several attacks on the Board’s analysis,
but none persuades us that the Board lacked substantial
evidence for its findings. First, Swarm argues that the
Board erred by implicitly construing “search” in a manner
inconsistent with its plain meaning, which in Swarm’s view
“requires the ability to evaluate and choose among differ-
ent tasks within the task pool in order to selectively re-
trieve one with an appropriate task type.” Open. Br. at 18-
19. Neither party asked the Board to construe the claim
term “search,” and the Board did not explicitly do so; nor
do we see anything in the Board’s understanding of the
term that causes us to believe its view of the term was
Case: 23-2323 Document: 58 Page: 9 Filed: 06/30/2025

-- 9 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 10
materially different than Swarm’s proposed plain and or-
dinary meaning. Swarm’s claim construction contention,
then, lacks merit.
Swarm next asserts that Lurie teaches workers being
assigned tasks by the automatic task distribution mecha-
nism, not that the workers themselves search through a
pool of tasks to find and select one matching their opera-
tional and performance characteristics. In support of its
contention, Swarm highlights paragraph 81 of Lurie, on
which the Board relied, which states in pertinent part: “Ad-
ditionally, in any of the embodiments depicted in FIGS. 3A-
3D, the system can determine or select the technical com-
puter worker 270A-270N to work on a task by operational
and/or performance characteristics of the technical compu-
ting worker 270A-270N and/or workstation 170A-170N.”
J.A. 1255 (Lurie ¶ 81) (quoted in Open. Br. at 23 and by
Board at J.A. 40). Swarm contends that in Lurie’s “sys-
tem,” the automatic task distribution mechanism, not the
worker, does the selecting.
The Board carefully considered this argument and re-
jected it. In doing so, the Board looked at the entirety of
Lurie’s disclosure, including the portion on which Swarm
now relies on appeal, and found that its teachings, in com-
bination with the teachings of Ethernet, render the dis-
puted claim limitation obvious. J.A. 40-41 (“Read in
context with another portion of the [Lurie] Specification, it
is clear that it is the [technical computing workers] that are
selecting the tasks.”).
Substantial evidence, including Lurie itself, supports
this finding. For instance, Lurie states that “[t]he technical
computing client . . . does not need to know the specifics of
the technical computing worker. . . . As such, the automatic
task distribution mechanism provides a level of indirection
between the technical computing client . . . and the tech-
nical computing worker,” J.A. 40 (citing J.A. 1251 (Lurie ¶
61)), and “the technical computing client . . . is not required
Case: 23-2323 Document: 58 Page: 10 Filed: 06/30/2025

-- 10 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 11
to have any specific knowledge of the technical computing
workers, . . . e.g., the name of the workstation running a
technical computing worker . . ., or the availability of the
technical computing worker . . . to perform technical com-
puting of a task,” J.A. 40-41 (citing J.A. 1253 (Lurie ¶ 71)).
In this context, the Board reasonably concluded that para-
graph 81’s “system” includes workers, that can “determine
or select” if they should work on a task, based on “opera-
tional and/or performance characteristics.” While perhaps
other conclusions might reasonably be drawn from these
teachings, the Board’s conclusion – that Lurie teaches an
agent selecting a task type that matches some feature or
capability of the co-processor – is certainly a reasonable
one, and hence is supported by substantial evidence.
Attacking the combination of Lurie and Ethernet,
Swarm faults the Board for relying on the allegedly inac-
curate declaration of Amazon’s expert, Dr. David Low-
enthal, to fill “gaps” in Lurie, and for providing a merely
conclusory, insufficient analysis of motivation to combine.
We are not persuaded. Dr. Lowenthal opined that Ether-
net teaches a “standard protocol;” that is, a “well known
and successful method[] of implementing networked com-
munications over a LAN.” J.A. 787 (¶ 213). The Board
credited this testimony to find that a skilled artisan “would
have sufficient reason to combine” Lurie and Ethernet
“with a reasonable expectation of success.” J.A. 45, 55; see
also KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007)
(explaining combination is obvious when it “simply ar-
ranges old elements with each performing the same func-
tion it had been known to perform and yields no more than
one would expect”) (internal quotation marks omitted).
The Board found that Ethernet provides a way of working
a standard LAN setup, including data frames that corre-
spond to the claimed agents, and Lurie is disclosed as run-
ning on a LAN. Reasons to implement Ethernet’s LAN on
Lurie, according to Dr. Lowenthal, include how ubiquitous
and well-known LAN protocol was, that Ethernet also
Case: 23-2323 Document: 58 Page: 11 Filed: 06/30/2025

-- 11 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 12
addressed distributed data processing, and that the teach-
ings of the Ethernet reference would have ensured compat-
ibility and interoperability between the multiple devices in
Lurie’s system. See, e.g., J.A. 768-69 (¶¶ 177-78). Dr. Low-
enthal’s extensive reasons to implement Ethernet’s LAN
are not conclusory and, as the Board observed, Swarm
“does not address separately” Dr. Lowenthal’s reasoning.
J.A. 55; see also J.A. 42, 53, 65 (Board finding Dr. Low-
enthal’s testimony “persuasive,” not conclusory). Thus, in
context, we can reasonably discern the Board’s reasoning,
which substantially tracks that of Dr. Lowenthal, as to why
a skilled artisan would have been motivated to combine Lu-
rie and Ethernet and would have had a reasonable expec-
tation of success in doing so. See In re Nuvasive, Inc., 842
F.3d 1376, 1382 (Fed. Cir. 2016) (“[W]e may affirm the
[Board’s] findings if we may reasonably discern that it fol-
lowed a proper path, even if that path is less than perfectly
clear.”) (internal quotation marks omitted).
B
Swarm next challenges the Board’s denial of its motion
to amend by replacing claims 1 and 2 with substitute
claims 13 and 14 in the ’004 patent, because the original
specification did not provide adequate written description
support for the new limitation Swarm sought to add in
these substitute claims. See J.A. 81 (“Various sections of
the specification . . . simply discuss adding processors or
the plug-and-play feature [but] none of the paragraphs de-
scribe another processor added ‘on a plug-and-play basis
without any communication with the controller.’”); see also
generally J.A. 79-84. In particular, the Board found there
was insufficient support for the limitation “wherein the
processing system is configured to dynamically accept the
first autonomous co-processor, the second autonomous co-
processor, and an additional autonomous co-processor into
the processing system on a plug-and-play basis without any
communication with the controller.” J.A. 1842 (emphasis
added).
Case: 23-2323 Document: 58 Page: 12 Filed: 06/30/2025

-- 12 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 13
Swarm criticizes the Board for having such a broad un-
derstanding of this limitation that it excludes direct and
indirect communication. Open. Br. at 56 (citing J.A. 84).
According to Swarm, the other words of the claim, includ-
ing the recitation of “a controller configured to populate the
task pool with . . . tasks,” instead require that the compo-
nent retrieving a task be in indirect communication with
the controller via the task pool. Thus, requiring the claims
to be practiced without any communication, including
without this type of indirect communication, “cannot be
correct” as it renders the claims “facially nonsensical.”
Open. Br. at 58 (quoting Becton, Dickinson & Co. v. Tyco
Healthcare Grp., LP, 616 F.3d 1249, 1255 (Fed. Cir. 2010)).
To Swarm, the “correct construction of ‘without any com-
munication’ . . . [is] ‘without any direct communication.’”
Open. Br. at 60.
We disagree with Swarm and agree with the Board.
The plain and ordinary meaning of “any” includes “of all
types,” so “any communication” includes “all types” of com-
munication and, specifically, “direct and indirect communi-
cation.” It follows that to be “without any communication
with the controller” means to be without direct and without
indirect communication with the controller. Moreover, the
specification expressly distinguishes between direct and
indirect communication. See, e.g., J.A. 151 (’004 patent
2:17-19) (“[T]he CPU communicates directly with the task
pool[] and communicates indirectly with the co-processors
through the task pool.”). This evidences the inventor’s un-
derstanding of “any communication” as including both
types of communication. J.A. 84; see also generally Ama-
zon’s Resp. Br. at 45 (contending Swarm argues, for first
time on appeal, “‘without any communication’ actually al-
lows some communication”) (emphasis omitted).
There is, however, nothing in the specification to show
a person of ordinary skill in the art that the inventor pos-
sessed an embodiment in which a co-processor is dynami-
cally added into the system without any communication –
Case: 23-2323 Document: 58 Page: 13 Filed: 06/30/2025

-- 13 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 14
direct or indirect – with the controller. Swarm attempts to
rely on intrinsic evidence arguably supporting a view that
the controller may generally communicate indirectly with
co-processors during operation. But this purported evi-
dence does not compel a conclusion that one of skill in the
art would understand “without any communication” to also
allow indirect communications during the dynamic process
of adding a new co-processor to the system. Hence, sub-
stantial evidence supports the Board’s finding that the
specification fails to provide adequate written description
support for the substitute claims and their negative limita-
tion. See Novartis Pharms. Corp. v. Accord Healthcare,
Inc., 38 F.4th 1013, 1016 (Fed. Cir. 2022) (“For negative
claim limitations . . . there is adequate written description
when, for example, the specification describes a reason to
exclude the relevant [element].”) (internal quotation marks
omitted; second alteration in original).
The specification support Swarm identifies as purport-
edly providing sufficient written description at best shows
the inventor possessed embodiments in which there was no
direct communication between the co-processors and the
controller. That is, Swarm’s written description argument
is bound up with its claim construction position, which we
have rejected. We affirm the Board’s denial of Swarm’s mo-
tion to amend.2
IV
We now turn to Amazon’s cross-appeal, which is based
on what Amazon contends is the Board’s incorrect con-
struction of “proactively” as that term is used in the claims
2 Given our conclusion with respect to written de-
scription, we need not consider Amazon’s additional argu-
ments for affirmance or Swarm’s challenge to the Board’s
conclusion that its substitute claims are directed to patent
ineligible subject matter under 35 U.S.C. § 101.
Case: 23-2323 Document: 58 Page: 14 Filed: 06/30/2025

-- 14 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 15
of Swarm’s ’275 patent. Amazon argued before the Board
that the term “proactively” encompasses a scenario where
“each co-processor may be configured (e.g., programmed) to
periodically send an agent to monitor the task pool for
available tasks appropriate to that co-processor.” J.A. 117
(citing J.A. 7098 (quoting J.A. 167 (’275 patent 2:48-51)).
The Board, by contrast, construed “proactively retrieving a
task” to mean “initiating change rather than reacting to
events (i.e. not being told to act or not reactionary).” J.A.
122. Applying that construction, it found that Lurie failed
to teach a proactive embodiment because Lurie required an
initial kickoff signal, sent from the controller to the co-pro-
cessor prior to the first task being retrieved. J.A. 137 (“Am-
azon fails to appreciate that each [technical computer
worker] . . . still requires a kickoff notification before it be-
gins retrieving and completing tasks. . . . [B]ecause Lurie’s
[technical computer workers] . . . require a kickoff notifica-
tion to retrieve a first task, it does not matter that they can
retrieve and complete additional tasks without further no-
tifications.”). Thus, in the Board’s view, Lurie’s example
does not disclose or render obvious proactive task retrieval
by the co-processors. J.A. 136 (crediting Dr. Lowenthal’s
testimony that Lurie teaches initial notification to “in-
form[] all registered [technical computing workers] that
one or more tasks are available”) (internal quotation marks
omitted). Simply put, Lurie’s workers reacted to the kick-
off signal and therefore were not proactive in retrieving
tasks, even if the workers did later on return to retrieve
additional tasks after completing the initially retrieved
tasks.
While the Board’s construction of “proactively” means
the claims do not encompass scenarios in which tasks are
retrieved and completed at any point following a kickoff no-
tification, even if no worker needs to be told anything fur-
ther after the kickoff, the Board identified substantial
intrinsic and extrinsic evidence supporting its construc-
tion, including examples in the specification, dictionary
Case: 23-2323 Document: 58 Page: 15 Filed: 06/30/2025

-- 15 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 16
definitions, and expert testimony. In particular, the
Board’s construction finds support in the specification,
even in the sentence on which Amazon places most empha-
sis on appeal. Amazon points to the ’275 patent’s state-
ment that “[t]he term proactive suggests that each co-
processor may be configured (e.g., programmed) to periodi-
cally send an agent to monitor the task pool for available
tasks appropriate to that co-processor.” Amazon’s Resp.
Br. at 68-70; see also J.A. 167 (’275 patent 2:48-51). The
Board concluded that “suggests” as used in this sentence
does not reveal the patentee adopting a special definition
of “proactive.”
The Board also cited extrinsic evidence, particularly
dictionary definitions, which define “proactive” as “antici-
patory” or “the opposite of reactive,” which to the Board
“support applying the ordinary and customary meaning of
proactively.” J.A. 121 (citing Dictionary.com and the
American Heritage Dictionary (5th ed. 2011)) (internal
quotation marks and emphasis omitted). The Board fur-
ther looked to the testimony of Dr. Lowenthal, who ex-
plained that proactively “by its plain and ordinary meaning
refers to a co-processor that does not need to be told to act.”
J.A. 122.
Amazon complicated the situation by not proposing a
specific, alternative construction of “proactively” and by
leaving it unclear whether its appeal presents a challenge
to the Board’s claim construction or, instead, only an ap-
peal of the Board’s application of its construction, resulting
in a factual finding that it contends is somehow wrong as a
matter of law. See, e.g., J.A. 119 (Board explaining that
“[t]he problem we face here is that neither party takes a
definitive position as to what exactly constitutes the ordi-
nary and customary meaning of the claim term ‘proac-
tively.’ . . . [W]e are left to speculate what the parties
believe is the ordinary and customary meaning of the claim
term ‘proactively’ in the context of the ’275 patent.”); Ama-
zon’s Resp. Br. at 25 (contending Board’s purported error
Case: 23-2323 Document: 58 Page: 16 Filed: 06/30/2025

-- 16 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 17
either “stems from its incorrect construction of the term
‘proactively’ or, at worst, misapplication of obviousness
law”); id. at 74 (trying to explain that if court does not view
issue on appeal as “a matter of claim construction [as Am-
azon contends] and instead believes that it was an applica-
tion” of the Board’s construction, “then the Board erred by
misapplying the law of obviousness”). Given the Board’s
reliance, in part, on extrinsic evidence, see J.A. 121, and
our deferential review of the Board’s findings about that
extrinsic evidence, combined with the specification support
relied on by the Board, we agree with the Board’s construc-
tion. Substantial evidence supports the Board’s applica-
tion of that construction, including the teachings of Lurie
and the testimony of Amazon’s own expert, Dr. Lowenthal,
see J.A. 122 (citing J.A. 764-67, J.A. 7303).3
Accordingly, we affirm the Board’s FWD that Amazon
failed to prove the challenged claims of the ’275 patent un-
patentable.
V
We have considered the parties’ remaining arguments
and find them unpersuasive. For the reasons stated above,
3 Amazon additionally argues that the Board’s con-
struction of “proactively” is wrong because it is “narrower
than any usage of the term in the ’275 patent” and excludes
preferred embodiments expressly taught in the patent’s
specification. Amazon’s Resp. Br. at 71. Amazon’s argu-
ment assumes, without evidence, that the embodiments of
the ’275 patent must have “an initial kickoff notification
that tasks are available before the co-processors send an
agent for monitoring.” Id. at 69. Because we find that the
specification does not support this contention, and for the
other reasons given by the Board and by us in this opinion,
we are not persuaded that Amazon’s construction is cor-
rect.
Case: 23-2323 Document: 58 Page: 17 Filed: 06/30/2025

-- 17 of 18 --

SWARM TECHNOLOGY LLC v. AMAZON.COM, INC. 18
we affirm the Board’s FWDs in both IPRs related to the
’004 and ’275 patents.
AFFIRMED
Case: 23-2323 Document: 58 Page: 18 Filed: 06/30/2025

-- 18 of 18 --