Swarm Technology LLC v. Hewlett Packard Enterprise Company

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
Swarm Technology LLC,
Plaintiff,
v.
Hewlett Packard Enterprise
Company,
Defendant.
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Civil Action H-24-4927
MEMORANDUM AND RECOMMENDATION
This case has been referred to the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(b)(1). ECF No. 36. Pending
before the court is Defendant’s Motion for Leave to Amend Answer,
ECF 	No. 	68, 	and 	Defendant’s 	Motion 	for 	Judgment 	on 	the
Pleadings, ECF No. 90. The court recommends that Defendant’s
Motion 	for 	Judgment 	on 	the 	Pleadings, 	ECF 	No. 	90, 	be
GRANTED. HPE’s Motion for Leave to Amend, ECF No. 68, is
DENIED as MOOT.
1. Background
Swarm Technology LLC (Swarm) filed this lawsuit against
Hewlett 	Packard 	Enterprise 	Company 	(HPE), 	alleging
infringement of U.S. Patent No. 12,159,1611 (the ’161 Patent). ECF
No. 30. The court held a claim construction (Markman2) hearing
and entered its claim construction order. ECF Nos. 79, 88.
The ’161 Patent is titled “System and Method for Swarm
Collaborative 	Intelligence 	Using 	Dynamically 	Configurable
Proactive Autonomous Agents.” The patent “generally relates to
1 Where citing to the specification and claims of the ’161 Patent, the court uses the format
“column:lines,” without naming the patent each time.
2 Markman v. Westview Instruments, 517 U.S. 370 (1996).
United States District Court
Southern District of Texas
ENTERED
July 29, 2026
Nathan Ochsner, Clerk
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parallel-process 	computing, 	and 	particularly 	to 	a 	processing
architecture which involves autonomous co-processors configured
to proactively retrieve tasks from a task pool populated by a
central processing unit.” 1:19–23.
The 	’161 	Patent’s 	specification 	explains 	that 	traditional
computer processors execute machine coded instructions serially.
1:47–48. 	It 	states 	that, 	“[t]o 	run 	a 	plurality 	of 	applications
concurrently, 	a 	single 	processor 	interleaves 	instructions 	from
various programs and executes them serially, although from the
user’s 	perspective 	the 	applications 	appear 	to 	be 	processed 	in
parallel.” 	1:47–52. 	Parallel 	processing, 	in 	contrast, 	breaks
computational tasks into individual blocks and distributes them to
two or more processors. 1:52–55. The processors then execute the
tasks. 1:55–60. The specification explains that typical parallel
processing systems include a central processing unit (CPU) and
one or more co-processors. 1:61–64. The CPU sections off tasks and
distributes them to the co-processors. 1:62–64. According to the
specification, 	that 	process 	is 	disadvantageous 	because 	“a
significant 	amount 	of 	CPU 	bandwidth 	is 	consumed 	by 	task
distribution; waiting for tasks to be completed before distributing
new tasks (often with dependencies on previous tasks); responding
to interrupts from co-processors when a task is completed; and
responding to other messages from co-processors.” 2:1–7.
In its “Summary of Invention,” the ’161 Patent states that:
Various 	embodiments 	of 	a 	parallel 	processing
computing architecture include a CPU configured to
populate a task pool, and one or more co-processors
configured to proactively retrieve threads (tasks) from
the task pool. Each co-processor notifies the task pool
upon completion of a task, and pings the task pool
until another task becomes available for processing. In
this way, the CPU communicates directly with the
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task pool, and communicates indirectly with the co-
processors through the task pool.
2:16–24.
Swarm 	alleges 	in 	its 	complaint 	that 	it 	created 	a 	new
multiprocessor 	architecture 	and 	“modified 	the 	structure,
operation, 	and 	arrangement 	of 	components 	within 	the
multiprocessor system[.]” ECF No. 30 at 4. According to Swarm, it
“interposed an intermediate device – the task pool – between the
CPU 	and 	the 	co-processors” 	and, 	under 	its 	system, 	“the 	co-
processors 	proactively 	retrieve 	and 	process 	tasks 	without
requiring 	communication 	from 	the 	CPU.” 	Id. 	at 	5. 	Such
modifications, Swarm alleges, improve efficiency and allow the
system to be more resilient to CPU overloading or temporary
disconnection. Id. at 5–6.
The ’161 Patent itself, however, tells a different story. The
specification repeatedly states that “[i]n various embodiments, the
co-processors may also communicate directly with the CPU.” 3:2–
3 (emphasis added). According to the specification, “[i]n some
embodiments, the CPU 11 communicates with the cells 12 only
indirectly through the task pool. In other embodiments, the CPU
11 may also communicate directly with the cells 12 without using
the task pool as an intermediary.” 4:51–55 (emphasis added); see
also 8:26–27 (“a cell may be acted upon or instructed directly by
the CPU”); see also 12:59–61 (“In an embodiment, the controller
and the first co-processor are configured communicate with each
other 	directly 	and 	through 	the 	task 	pool.”). 	Thus, 	as 	some
embodiments do not require that the task pool be interposed
between the CPU and the co-processors, Swarm’s argument that
its invention relates to an architecture requiring interposition of
the 	task 	pool 	between 	the 	CPU 	and 	the 	co-processors 	is
undermined directly by the specification itself.
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The ’161 Patent describes many different embodiments of
parallel processing systems and encompasses a nearly endless
variety of applications. For example, the specification states that:
Various 	embodiments 	relate 	to 	parallel 	processing
computing systems and environments, from simple
switching and control functions to complex programs
and 	algorithms 	including, 	without 	limitation: 	data
encryption; 	graphics, 	video, 	and 	audio 	processing;
direct 	memory 	access; 	mathematical 	computations;
data mining; game algorithms; ethernet packet and
other 	network 	protocol 	processing 	including
construction, reception and transmission of data the
outside 	network; 	financial 	services 	and 	business
methods; search engines; internet data streaming and
other web-based applications; execution of internal or
external 	software 	programs; 	switching 	on 	and 	off
and/or 	otherwise 	controlling 	or 	manipulating
appliances, light bulbs, consumer electronics, and the
like, e.g., in the context of the Internet-of-Things.
4:16–30. 	It 	broadly 	states 	that 	“[v]arious 	features 	may 	be
incorporated 	into 	any 	presently 	known 	or 	later-developed
computer architecture.” 4:31–36. The specification continues by
stating 	that 	the 	memory 	units, 	cells, 	and 	task 	pool 	“may 	be
ohmically or wirelessly interconnected to communicate with the
CPU and/or with each other via the switching fabric.” 4:48–51
(emphasis added). The CPU may also retrieve and execute a task
from the task pool. 7:34–35 (emphasis added). Also of note, and as
the court alluded to above, the ’161 Patent’s language indicates
that 	the 	system’s 	components 	may 	be 	generic 	computer
components (e.g., a personal computer, smartphone, tablet, or
Internet-of-Things device). 5:24–51. The specification does not
describe any previously unknown computer components.
The U.S. Patent and Trademark Office (PTO) issued the ’161
Patent on December 3, 2024. The ’161 Patent states that it is a
continuation of several patents and applications that came before
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it. 1:8–15. Preceding the ’161 Patent is the ’275 Patent, which is a
continuation of U.S. Patent No. 9,852,004, (the ’004 Patent) issued
on December 26, 2017, which is a continuation of U.S. Patent
No. 9,146,777, (the ’777 Patent) issued on September 29, 2015. Id.
Several of the patents prior to the ’161 Patent have been the
subject of litigation. See, e.g., Juniper Networks Inc. v. Swarm
Tech. LLC, No. 3:20-CV-03137, 2022 WL 3031211 (N.D. Cal. Aug.
1, 2022) (considering Swarm’s ’777 Patent); see also Swarm Tech.
LLC v. Amazon.com Inc., No. CV-21-00438, 2022 WL 3585835 (D.
Ariz. Aug. 22, 2022) (considering a representative claim from
Swarm’s ’004 Patent).
Only Claims 22 and 35 of the ’161 Patent remain at issue in
this case. ECF No. 90 at 13; ECF No. 93 at 8 n.1. Both claims, in
their entirety, are included below.
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16:19–46.
20:20–49.
HPE asks for judgment on the pleadings and argues that the
’161 Patent claims are not eligible for patent protection under the
Patent Act, 35 U.S.C. § 101. ECF No. 90. HPE also asks for leave
to amend its answer to add a claim of inequitable conduct. ECF
No. 68. As the court has stated before, the court has read and
carefully considered all the parties’ arguments and briefing. For
reasons of judicial economy, however, the court has not addressed
in writing every single argument that the parties have made. The
parties should thus not assume that the court has failed to consider
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an argument or factual matter that is not specifically discussed
herein.
2. Judgment on the Pleadings Legal Standard
Rule 12(c) allows a party to move for judgment after the
pleadings are closed and “is designed to dispose of cases where the
material facts are not in dispute and a judgment on the merits can
be rendered by looking to the substance of the pleadings and any
judicially noticed facts.” Garza v. Escobar, 972 F.3d 721, 727 (5th
Cir. 2020) (quoting Great Plains Tr. Co. v. Morgan Stanley Dean
Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002)). In analyzing the
complaint, courts apply the same standard as for Rule 12(b)(6). Id.
at 727. Courts accept the complaint’s well-pleaded facts as true
and view them in the light most favorable to the plaintiff. Great
Plains Tr. Co., 313 F.3d at 312–13 (quoting Jones v. Greninger, 188
F.3d 322, 324 (5th Cir. 1999)). Courts do not accept conclusory
allegations or unwarranted deductions of fact. Id. at 313.
3. Swarm’s Objections to Matters Outside the
Pleadings
Swarm objects that HPE cited to or otherwise included
several materials in its motion that the court cannot consider at
this stage. ECF No. 93 at 6–7. Swarm objects that the court cannot
properly consider HPE’s technology tutorial, multiple sentences in
HPE’s brief, and references to the Markman hearing transcript
because those matters are not part of the pleadings. Id. HPE
responds in a footnote that the court may properly take judicial
notice of each document it cited. ECF No. 95 at 9 n.1.
“If, on a motion under Rule 12(b)(6) or 12(c), matters outside
the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56.” Fed. R. Civ. P. 12(d). When considering a motion to dismiss,
the court must limit itself to: (1) the facts in the complaint; (2)
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documents attached to the complaint; and (3) matters of which the
court may take judicial notice. Walker v. Beaumont Indep. Sch.
Dist., 938 F.3d 724, 735 (5th Cir. 2019).
The 	court 	need 	not 	determine 	whether 	the 	objected-to
documents are properly before the court because they do not affect
the court’s 	analysis. Thus, excluding 	the documents does not
prejudice HPE in any way. Swarm’s objections are SUSTAINED
and the matters are EXCLUDED from the court’s consideration.
4. Analysis
Patent-eligible subject matter is defined as “any new and
useful process, machine, manufacture, or composition of matter, or
any new and useful improvement thereof[.]” 35 U.S.C. § 101. The
Supreme Court has “long held that this provision contains an
important implicit exception: Laws of nature, natural phenomena,
and abstract ideas are not patentable.” Alice Corp. v. CLS Bank
Int’l, 573 U.S. 208, 216 (2014).
When a patent claim is alleged to involve one of the three
excluded types of subject matter, courts must follow the two-step
test for examining patent eligibility articulated in Alice. Universal
Secure Registry LLC v. Apple Inc., 10 F.4th 1342, 1346 (Fed. Cir.
2021). First, the court determines whether the claims at issue are
directed to a judicial exception, such as an abstract idea. Alice, 573
U.S. at 218. If so, at step two the court must “examine the elements
of the claim to determine whether it contains an ‘inventive concept’
sufficient to ‘transform’ the claimed abstract idea into a patent-
eligible application.” Id. at 221 (quoting Mayo Collaborative Servs.
v. Prometheus Labs, Inc., 566 U.S. 66, 78–79 (2012)).
The Federal Circuit has recently explained that, although
the two steps of the Alice framework are distinct, the two inquiries
often overlap. GoTV Streaming, LLC v. Netflix, Inc., 166 F.4th
1053, 1067 (Fed. Cir. 2026). “Step one focuses on the legal issue of
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the meaning of the claims and specification . . . which at least
typically 	‘can 	be 	answered 	based 	on 	the 	intrinsic 	evidence,’
whereas step two focuses on often-factual issues of real-world
knowledge and practices[.]” Id.
Patent eligibility is a question of law that may be based on
underlying factual findings. Berkheimer v. HP Inc., 881 F.3d 1360,
1365 	(Fed. 	Cir. 	2018). 	“Like 	other 	legal 	questions 	based 	on
underlying facts, [patent eligibility] may be, and frequently has
been, 	resolved 	on 	a 	Rule 	12(b)(6) 	or 	(c) 	motion 	where 	the
undisputed facts, considered under the standards required by that
Rule, 	require 	a 	holding 	of 	ineligibility 	under 	the 	substantive
standards of law.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161,
1166 (Fed. Cir. 2018); Universal Secure Registry, 10 F.4th at 1346
(stating that patent eligibility can be determined at the motion to
dismiss stage when there are no factual allegations that prevent
determining eligibility as a matter of law).
In ruling on a motion to dismiss, the court need not accept
as true allegations that contradict matters properly subject to
judicial notice, such as the claims and the patent specification.
Secured Mail Sols. LLC v. Universal Wilde, Inc., 873 F.3d 905, 913
(Fed. Cir. 2017). The Federal Circuit “has determined claims to be
patent-ineligible at the motion to dismiss stage based on intrinsic
evidence from the specification without need for ‘extraneous fact
finding outside the record.’” Id. at 912.
A. Alice Step One
The parties dispute whether the claims of the ’161 Patent
are directed to an abstract idea. HPE argues that “the claims are
directed to the abstract idea of organizing activity by collecting,
processing, and reporting information.” ECF No. 90 at 16. Swarm
argues that “[t]he character of claim 22 (and 35 as well) as a whole
is 	directed 	to 	an 	improved 	parallel 	multiprocessor 	computing
architecture,” 	and 	that 	the 	claims 	focus 	on 	“how 	tasks 	are
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managed in order to improve the function of the computer.” ECF
No. 93 at 15, 19.
The 	exclusion 	of 	abstract 	ideas 	from 	patent 	eligibility
embodies “the longstanding rule that ‘an idea of itself is not
patentable.’” Alice, 573 U.S. at 218 (quoting Gottschalk v. Benson,
409 U.S. 63, 67 (1972)). Under Alice step one, the court considers
the claims in their entirety “to ascertain whether their character
as a whole is directed to excluded subject matter.” Two-Way Media
Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1337 (Fed.
Cir. 2017) (quoting Internet Patents Corp. v. Active Network, Inc.,
790 F.3d 1343, 1346 (Fed. Cir. 2015)). The analysis “requires ‘an
accurate characterization of what the claims require and of what
the patent asserts to be the claimed advance.’” Trs. of Columbia
Univ. in City of New York v. Gen Digital Inc., 169 F.4th 1320, 1329
(Fed. Cir. 2026) (quoting TecSec, Inc. v. Adobe Inc., 978 F.3d 1278,
1294 (Fed. Cir. 2020)). Although the specification is relevant to the
construction of the claims, it is the claims that define the invention
and whether patentable subject matter exists. Id. (explaining that
“reliance on the specification must always yield to the 	claim
language”).
“[T]he decisional mechanism courts now apply is to examine
earlier cases in which a similar or parallel descriptive nature can
be seen—what prior cases were about, and which way they were
decided.” Amdocs (Israel) Ltd. v. Openet Telecom, Inc., 841 F.3d
1288, 1294 (Fed. Cir. 2016). The court looks to “whether the claims
in the patent focus on a specific means or method, or are instead
directed to a result or effect that itself is the abstract idea and
merely 	invokes 	generic 	processes 	and 	machinery.” 	Two-Way
Media, 	874 	F.3d 	at 	1337. 	“Automation 	or 	digitization 	of 	a
conventional 	method 	of 	organizing 	human 	activity 	like 	the
creation of a travel log on a computer does not bring the claims out
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of the realm of abstractness.” Weisner v. Google LLC, 51 F.4th
1073, 1083 (Fed. Cir. 2022).
The 	Federal 	Circuit 	has 	recently 	considered 	multiple
relevant patents and determined that the claims were directed to
an abstract idea. Claims are directed to an abstract idea if they use
purely 	“result-focused 	functional 	language, 	containing 	no
specificity 	about 	how 	the 	purported 	invention 	achieves 	those
results[.]” GoTV Streaming, 166 F.4th at 1064 (emphasis added).
The Federal Circuit has further explained that, as to the abstract
idea analysis in the context of computers, their networks, and their
activities:
On one side of the line (requiring a determination
favoring the patent challenger at step one) are claims
that simply call for the use of computers and networks
as tools to carry out an abstract idea, using their
ordinary 	functions 	without 	specific 	hardware 	or
process advances in those functions—e.g., receiving
inputs, storing and retrieving, processing, outputting
(including displaying), and transmitting. On the other
side of the line (ending the Alice inquiry, without
proceeding to step two) are claims that call for a
concrete asserted improvement in how those functions
are 	carried 	out, 	which 	requires 	more 	than 	result-
focused functional language and more than just using
those functions in the context of specifically identified
content.
Id. at 1064 (emphasis in original).
In 	GoTV 	Streaming, 	decided 	just 	recently, 	the 	plaintiff
owned 	patents 	claiming 	methods 	and 	systems 	for 	delivering
content to a wireless device (i.e., for visual content, placing the
content on the device’s screen) and tailoring the specifications for
the content to the screen size of the wireless device. 166 F.4th at
1055. The court found that the claims were directed to the abstract
idea of a generic template set of specifications that can be tailored
to final production of a specified product. Id. at 1065. The court
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found that the claims did not call for any new hardware or for other
improvements in the rendering processes or in ordinary computer
functions. 	Id. 	at 1065–66. 	There 	was 	“no 	improvement 	of
computer/network operations in their ordinary functions, just the
use of ordinary functions as a tool for executing the abstract idea.”
Id. at 1066.
In another very recent case, the Federal Circuit explained
that a patent related to antivirus computer software was directed
to the abstract idea of comparing data against a model. Trs. of
Columbia, 169 F.4th at 1332. The patent claims disclosed a process
by which an “emulator” executed a portion of a program and
compared the emulated program to a “model of function calls,”
which showed how the program should typically perform. Id. at
1326. 	The 	specification 	explained 	that 	by 	dividing 	the 	task
between different computers, a complete model could be created
more quickly than one computer working on its own. Id. at 1330.
There, the plaintiff had conceded that such “a divide-and-conquer
approach where multiple computers collaborate on a single task is
an abstract idea.” Id. The plaintiff argued, however, that the
asserted claims recited various technological improvements, which
directed the claims to something non-abstract. Id.
The 	court 	found, 	however, 	that 	“these 	supposed
improvements are not what the claims are directed to, i.e., the
supposed improvements are not required by the language of the
asserted claims at all.” Trs. of Columbia, 169 F.4th at 1330. The
court found that claims cannot be “directed to a technological
improvement 	when 	nothing 	in 	the 	claims 	requires 	the 	steps
necessary to make the improvement.” Id. at 1331 (citing GoTV
Streaming, 166 F.4th at 1061). The court stated that “[i]n the
software context, Alice step one ‘often turns on whether the claims
focus 	on 	the 	specific 	asserted 	improvement 	in 	computer
capabilities’ rather than ‘an abstract idea for which computers are
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invoked merely as a tool.’” Id. at 1329 (quoting Finjan, Inc. v. Blue
Coat Sys., Inc., 879 F.3d 1299, 1303 (Fed. Cir. 2018)).
In 	contrast, 	the 	Federal 	Circuit 	has 	found 	that 	claims
describing a specific improvement in computer capabilities are not
directed to an abstract idea. In Enfish, LLC v. Microsoft Corp., 822
F.3d 1327 (Fed. Cir. 2016), the Federal Circuit considered patents
related 	to 	a 	logical 	model 	for 	a 	“self-referential” 	computer
database. Id. at 1330. The court focused its analysis on whether
the claims were directed to a specific improvement in computer
capabilities or instead directed to an abstract idea for which
computers were invoked merely as a tool. Id. at 1335–36. The court
found 	that 	the 	claims 	were 	directed 	to 	an 	improvement 	to
computer 	functionality—the 	way 	computers 	manage 	data
embodied in the self-referential table. Id. at 1336. The claims at
issue were “not simply directed to any form of storing tabular data,
but instead [were] specifically directed to a self-referential table
for a computer database.” Id. at 1337 (emphasis in original).
In another case, the Federal Circuit found that the patent at
issue claimed an improvement to computer memory systems and
was not directed to an abstract idea. Visual Memory LLC v.
NVIDIA Corp., 867 F.3d 1253, 1255 (Fed. Cir. 2017). The patent
described 	a 	memory 	system 	with 	programmable 	operational
characteristics 	that 	could 	be 	tailored 	for 	use 	with 	multiple
processors without a reduction in performance. Id. at 1255–56. The
patent claims did not recite generic types and forms of data
storage. Id. at 1259. Instead, the court found that the claims
focused on an enhanced computer memory system, which was a
“specific asserted improvement in computer capabilities” and not
on an abstract idea for which computers are invoked as merely a
tool. Id. at 1259–60.
Many courts that have considered patent claims very similar
to those at issue here have determined that such claims are
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directed to an abstract idea. For example, a patent was directed to
the abstract idea of distributed processing akin to the military’s
command and control system where the claims described a system
and method “of using a network of multiple actors to efficiently and
reliably . . . complete a task by breaking down the job into small
pieces, each handled by a different actor organized within an
internal hierarchy.” Appistry, Inc. v. Amazon.com, Inc., No. C15-
311, 2015 WL 4210890, at *2 (W.D. Wash. July 9, 2015), aff’d, 676
F. App’x 1007 (Fed. Cir. 2017).
Similarly, 	in 	Juniper 	Networks, 	the 	court 	considered
Swarm’s ’777 Patent. The court found that the claims were “drawn
to the abstract idea of retrieving and completing tasks from a task
pool.” Juniper Networks, 2022 WL 3031211, at *5. The court
explained 	that 	“[s]crum 	boards 	are 	an 	apt 	analogy, 	but 	the
principles 	of 	allocating 	tasks 	among 	workers 	and 	workers
proactively seeking more tasks upon completion without direction
from a project manager has been practiced throughout history and
across industries.” Id. The court found that such a fundamental
and long prevalent practice was a quintessential abstract idea. Id.
Here, Swarm’s claims fall squarely within the ambit of an
abstract idea, similar to the claims at issue in Trustees of Columbia
and GoTV Streaming. Claims 22 and 35 both recite a method of
improving the function and operation of a distributed processing
system 	by 	reducing 	CPU 	management. 	16:19–23; 	20:20–24.
Claims 22 and 35 require programming a CPU to communicate
with the task pool. 16:19–25; 20:20–26. The CPU populates the
task pool, and an agent searches the task pool for a task. 16:26–
35; 	20:27–35. 	The 	agent 	retrieves 	a 	task 	and 	a 	co-processor
processes the task. 16:36–42; 20:36–40. The task pool receives a
notification that the task is complete and marks the task as
complete. 16:41–44; 20:41–45. Then, the task pool notifies the CPU
that the task is complete. 16:45–46; 20:46–49. Both claims focus on
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efficiently managing the allocation and processing of tasks, which
is no more than the use of computers as tools to carry out the
abstract idea of task management. Nothing in the claims includes
anything different that a typical “command and control,” “divide-
and-conquer,” or “scrum board” approach implemented by humans
to manage tasks, all of which have been found to be abstract ideas,
as discussed above. Thus, the claims merely use computers to
implement the task management process. Moreover, the claims do
not call for a concrete asserted improvement in how functions are
carried out.
Unlike the claims in Enfish and Visual Memory, which were
specifically directed to an improvement in a computer component
(i.e., the memory system or self-referential tables in data storage),
the character of Swarm’s claims is directed to the abstract idea of
distributing, 	retrieving, 	and 	processing 	tasks. 	See 	GoTV
Streaming, 166 F.4th at 1064 (listing “receiving inputs, storing and
retrieving, 	processing, 	outputting 	. 	. 	. 	, 	and 	transmitting” 	as
examples of functions that may call for the use of computers as
tools to carry out an abstract idea). Here, as in GoTV Streaming,
the terms on which Swarm relies “have broad meanings that,
individually and taken together, cannot support a conclusion that
the claim is directed to a concrete computer/network advance.” Cf.
id. at 1066. The character of Swarm’s claims is no different from
the abstract idea of the divide-and-conquer approach, which uses
a network of multiple actors to efficiently and reliably complete a
task by breaking down the job into small pieces, each handled by
a 	different 	actor 	organized 	within 	an 	internal 	hierarchy. 	Cf.
Appistry, 2015 WL 4210890, at *2 (analogizing the distributed
processing system to the command and control system used by the
military); 	cf. 	Trs. 	of 	Columbia 	Univ., 	169 	F.4th 	at 1329
(recognizing that multiple computers collaborating on a single task
is an abstract idea).
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Swarm argues that Claims 22 and 35 are directed to an
improved computer processing system and a non-conventional
arrangement of components. ECF No. 93 at 16, 24–25. Swarm’s
complaint alleges that Swarm interposed the task pool between
the CPU and the co-processors and that, under its system, “the co-
processors 	proactively 	retrieve 	and 	process 	tasks 	without
requiring communication from the CPU.” ECF No. 30 at 5.
There are two problems with Swarm’s argument. First, the
specification specifically allows embodiments wherein the CPU
communicates 	directly 	with 	the 	co-processors. 	3:2–3; 	4:51–55;
8:26–27; 12:59–61. Second, the claims do not require interposition
of the task pool. The claims allow the task pool to be interposed
between the CPU and the co-processors, but nothing in the claims
excludes the possibility that the CPU may also communicate
directly with the co-processors.
Swarm’s claims suffer from the same defect as the claims in
Trustees of Columbia. There, as the court explained above, the
Federal 	Circuit 	found 	that 	the 	claimed 	technological
improvements were not required by the language of the claims.
The same is true here. Swarm’s argument that it interposed a task
pool between the CPU and co-processors is explicitly contradicted
by 	the 	specification. 	Neither 	the 	specification 	nor 	the 	claims
describe the improved computer architecture that Swarm claims
to have invented. As in Trustees of Columbia, “[i]t cannot be said
that the claims are directed to a technological improvement when
nothing in the claims requires the steps necessary to make the
improvement.” Trs. of Columbia, 169 F.4th at 1331. No affidavit or
other testimony can change what is unambiguously described in
the patent itself. Thus, the court proceeds to step two of the Alice
inquiry.
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B. Alice Step Two
At step two, the court’s “inquiry is into whether the claims
recite matter that is ‘an inventive concept that renders a claim
significantly more than an abstract idea to which it is directed.’”
GoTV Streaming, 166 F.4th at 1067. The court considers “the
elements 	of 	each 	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.” Berkheimer v. HP Inc., 881 F.3d 1360, 1367 (Fed. Cir.
2018) (quoting Alice, 573 U.S. at 217).
Improving computer functionality to increase the speed or
efficiency of a process does not confer patent eligibility on an
otherwise abstract idea. GoTV Streaming, 166 F.4th at 1067–68.
“[I]t is not sufficient. . . for a claim to use functional, result-focused
language or to encompass ordinary computers and networks to
perform their ordinary functions in carrying out an abstract idea,
. . . without going further to require a specific implementation to
improve 	how 	those 	functions 	are 	carried 	out.” 	Id. 	at 	1067
(emphasis added).
Claims 22 and 35 do not recite any component, process, or
architecture beyond the abstract idea of task management itself.
They do not explain how to implement any particular solution to a
computer-specific problem. They merely recite steps for carrying
out the abstract idea of task management. The claims encompass
ordinary computer components and networks to perform their
ordinary functions in carrying out an abstract idea.
Swarm argues that the inventive concept that goes beyond
any 	abstract 	idea 	is 	its 	“non-conventional 	and 	non-generic
arrangement of components.” ECF No. 93 at 26. As discussed
above in connection with step one, the specification and claims do
not 	actually 	require 	the 	configuration 	and 	arrangement 	of
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components that Swarm says it invented. The court need not go
beyond the patent itself to form that conclusion.
Thus, the claims fail both steps of the Alice test and are
invalid for ineligibility under § 101. The court recommends that
HPE’s Motion for Judgment on the Pleadings be GRANTED.
5. Motion to Amend
HPE argues that it learned of inequitable conduct through
Swarm’s claim construction briefing and it now seeks leave to
amend its answer to assert a defense of inequitable conduct. ECF
No. 68 at 8. Because the court recommends that HPE’s Motion for
Judgment on the Pleadings be granted, HPE’s motion to amend is
DENIED as MOOT.
6. Conclusion
The 	court 	recommends 	that 	Defendant’s 	Motion 	for
Judgment on the Pleadings, ECF No. 90, be GRANTED. HPE’s
Motion for Leave to Amend, ECF No. 68, is DENIED as MOOT.
The parties have fourteen days from service of this
Memorandum and Recommendation to file written objections. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Failure to timely file
objections will preclude appellate review of factual findings or legal
conclusions, except for plain error. See Thomas v. Arn, 474
U.S. 140, 147–49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276–
77 (5th Cir. 1988).
Signed at Houston, Texas on July 29, 2026.
______________________________________
Peter Bray
United States Magistrate Judge
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