Micrografx, LLC v. Google Inc.

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

MICROGRAFX, LLC,

Appellant

v.

GOOGLE INC., SAMSUNG ELECTRONICS

AMERICA, INC., SAMSUNG ELECTRONICS CO.,

LTD.,

Appellees

______________________

2015-2091, 2015-2092

______________________

Appeals from the United States Patent and Trade-

mark Office, Patent Trial and Appeal Board in Nos.

IPR2014-00533, IPR2014-00534.

______________________

Decided: November 29, 2016

______________________

DOUGLAS R. WILSON, Heim, Payne & Chorush, LLP,

Houston, TX, argued for appellant. Also represented by

ROBERT ALLAN BULLWINKEL, MICHAEL F. HEIM.

DAVID S. ALMELING, O'Melveny & Myers LLP, San

Francisco, CA, argued for appellees. Also represented by

MARK LIANG, DARIN W. SNYDER; MISHIMA ALAM, Washing-

ton, DC; SUSAN ROEDER, Menlo Park, CA; MICHAEL

2 MICROGRAFX, LLC v. GOOGLE INC.

TIMOTHY HAWKINS, Fish & Richardson P.C., Minneapolis,

MN.

______________________

Before NEWMAN, DYK, and TARANTO, Circuit Judges.

DYK, Circuit Judge.

Micrografx, LLC (“Micrografx”) appeals decisions of

the Patent Trial and Appeal Board (“Board”). The Board

held that claims 1–3, 5, 7, 10–12, 14, 16, 19, 44, 54–57, 59,

61–66, 68, 69, and 71 of U.S. Patent No. 6,057,854 (“’854

patent”) and claims 1–5, 8, 9, 12, 36, and 42 of U.S. Patent

No. 6,552,732 B1 (“’732 patent”) (collectively “the chal-

lenged claims of the ’854 and ’732 patents”) were antici-

pated by Mark Pesce, VRML: Browsing & Building

Cyberspace (1995) (“Pesce”). We affirm.

BACKGROUND

Micrografx owns the ’854 and ’732 patents. Both pa-

tents claim priority to the same provisional application

and they have materially identical specifications. The

invention is a method for creating interactive graphics for

delivery over the Internet. According to the specifica-

tions, the graphic files in the prior art were large, took a

long time to download over the Internet, and relied on bit

mapping, which defines each pixel of an image individual-

ly. In addition, the interactive area of a graphic that

responds to actions by a user, known as “hot spots,” were

inflexible and restricted to rectangular shapes. The

invention sought to overcome these disadvantages by

defining graphical images mathematically using “vector

objects containing mathematical descriptions of lines,

curves, fills, and patterns.” ’854 patent, col. 2 ll. 13–14.

According to the specifications, the invention’s vector

object files were smaller, loaded faster, could be scaled to

different sizes without degradation, and provided greater

flexibility for defining the active areas or “hot spots”

MICROGRAFX, LLC v. GOOGLE INC. 3

associated with images. Claim 1 of the ’854 patent is

representative.

An interactive vector object stored on a comput-

er readable medium and operable to be download-

ed over a network, the vector object comprising:

data operable to be downloaded to a client

system connectable to the network and in

connection with a vector graphics network

file to render an image of the vector object

on the client system;

an active area defined by the vector object;

and

a property defining a command to be per-

formed in response to an event within the

active area of the vector object.

’854 patent, col. 12 ll. 22–32.

On August 20, 2013, the United States Patent and

Trademark Office (“PTO”) issued a certificate of correc-

tion, correcting the language of claims 1, 10, 23, 33, 44,

55, and 64 of the ’854 patent. Specifically, as indicated in

italics below, this correction changed the language of the

last two limitations to read:

an active area predefined by the vector ob-

ject, the active area associated with a

command to be performed in response to

an event therein; and

a property defining the command to be

performed in response to the event within

the active area of the vector object.

J.A. 76. The certificate itself does not mention a reason

for the correction. At oral argument, Micrografx ex-

plained that the prior omission of these limitations was

inadvertent.

4 MICROGRAFX, LLC v. GOOGLE INC.

On March 24, 2014, Google Inc., Samsung Electronics

America, Inc., and Samsung Electronics Co., Ltd., (collec-

tively “Google”), filed petitions for inter partes review of

the ’854 and ’732 patents. Google asserted that the chal-

lenged claims of the ’854 and ’732 patents were anticipat-

ed by Pesce.

Pesce is a manual that describes the use of VRML

(Virtual Reality Modeling Language). VRML is a com-

puter language that can be used to create interactive,

three-dimensional graphics for delivery over the Internet.

In VRML, graphical images can be defined mathematical-

ly. Using VRML requires creating a VRML document. A

VRML document contains a textual description of a

graphical image or scene using the VRML computer

language, and can be requested by and delivered to a web

browser over the Internet. Once downloaded, in order for

a computer to display the VRML graphical image or

scene, a VRML document must be parsed—“turned into a

set of objects the computer understands.” J.A. 934. For

instance, a parser “will convert VRML . . . files into a set

of C++ objects, which correspond to the nodes in the

VRML file.” J.A. 1119.

As a computer language, VRML refers to graphical ob-

jects as nodes. Nodes are a set of modeling constructs

used to create a graphical image or scene. There are

three general types of nodes: shape nodes, such as a

Sphere node or a Cube node, for defining an object’s

geometry; property nodes, such as a Material node, for

defining how a shape is drawn (for instance its color); and

grouping nodes, such as a Group node or a Separator

node, for gathering nodes together as a single object.

Each node also contains “one or more fields . . . [which is]

for the node to store information specific to itself,” such as

the radius field of a Sphere node. J.A. 936. In terms of

VRML syntax, nodes are arranged in a hierarchical

structure, such that one node can be embedded within

another. Specifically, grouping nodes “can have other

MICROGRAFX, LLC v. GOOGLE INC. 5

nodes within them.” J.A. 937. The syntactical order and

hierarchical structure of the nodes impact how they

interact. For instance, Pesce uses a basic example of

drawing “a big yellow sun” in VRML by using a Separator

node that contains first a Material node defining the color

yellow and second a Sphere node defining the shape and

size as shown in the following material from Pesce.

J.A. 938–39 (“Sphere node,” “Material node,” and “Separa-

tor group node” markup our own). 1 Of relevance to this

case, Pesce also describes other VRML nodes such as the

WWWAnchor node, which is a grouping node that makes

a graphical object respond to a user action, such as load-

ing a webpage when a user clicks, and the Transform

node, which defines the relative location of various objects

or nodes that are part of a VRML scene.

On June 17, 2015, in a combined final written deci-

sion for both inter partes review proceedings the Board

concluded by a preponderance of evidence that Pesce

1 Our labeling of the nodes corresponds to the label-

ing that the parties themselves utilized.

6 MICROGRAFX, LLC v. GOOGLE INC.

anticipates the challenged claims of the ’854 and ’732

patents.

Micrografx appeals. We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(4)(A).

DISCUSSION

We review the Board’s legal conclusions de novo and

review the Board’s factual findings for substantial evi-

dence. 5 U.S.C. § 706(2); In re Montgomery, 677 F.3d

1375, 1379 (Fed. Cir. 2012). In construing claim terms,

the Board adopts the “broadest reasonable construction in

light of the specification in which” the terms appear. 37

C.F.R. § 42.100(b); Cuozzo Speed Techs., LLC v. Lee, 136

S. Ct. 2131. 2144–45 (2016). Anticipation is a question of

fact reviewed for substantial evidence. In re Rambus Inc.,

494 F.3d 42, 46 (Fed. Cir. 2012).

I

First, Micrografx contends that the Board erred by re-

lying on the uncorrected claim language of the ’854 patent

instead of the narrower, corrected claim language. In its

decision, the Board did recite the uncorrected claim

language in places. But, as Google points out, the Board

relied on the petition for inter partes review, which de-

scribed the correct claim language, and the Board ex-

pressly relied on the supporting declaration of Google’s

expert in reaching its decision, which used the corrected

language. More importantly, Micrografx does not argue

there is some material difference between the corrected

and uncorrected language, or that utilizing the corrected

language would render Pesce not anticipatory. During

argument, Micrografx conceded that it could not “point

[us] to a specific harm as a result of that mistake, other

than the general observation that the Board was some-

what careless in its analysis . . . .” Oral Arg. at 1:44–55.

The harmless error rule applies to appeals from the

Board. See, e.g., In re Watts, 354 F.3d 1362, 1369 (Fed.

MICROGRAFX, LLC v. GOOGLE INC. 7

Cir. 2004); In re McDaniel, 293 F.3d 1379, 1387 (Fed. Cir.

2002). Since Micrografx itself is unable to point to any

harm, the error by the Board in reciting the uncorrected

claim language in its written decision was harmless.

II

Second, Micrografx argues that the Board failed to

consider the parser source code that converts VRML to

C++ or Micrografx’s arguments based on that translation.

Before the Board, Micrografx argued that once a VRML

document is parsed—or translated—into C++ objects,

each VRML node becomes a separate C++ object such that

no single C++ object satisfies all the claim limitations of

an interactive vector object. In other words, Micrografx

wanted the Board to analyze whether Pesce anticipates

using C++ as opposed to using VRML. Because the Board

analyzed anticipation using the VRML version and did

not explicitly reference the parser source code, Micrografx

argues that it failed to consider material evidence in the

record. This argument has no merit.

While the Board must “provide[] . . . an []adequate

predicate upon which to evaluate its decision,” Power

Integrations, Inc. v. Lee, 797 F.3d 1318, 1325 (Fed. Cir.

2015), which includes “sufficient findings and reasoning to

permit meaningful appellate scrutiny,” Gechter v. Da-

vidson, 116 F.3d 1454, 1458 (Fed. Cir. 1997), there is no

merit to Micrografx’s argument that the Board failed to do

so here. This is not a case where the Board failed to

present a reasoned explanation for its decision, to tether

its analysis to the record, or to consider relevant evidence.

Cf. Arendi S.A.R.L. v. Apple Inc., 832 F.3d 1355, 1362–63

(Fed. Cir. 2016); In re Sullivan, 498 F.3d 1345, 1352–53

(Fed. Cir. 2007); In re Lee, 277 F.3d 1338, 1342–43 (Fed.

Cir. 2002). The Board is “not require[d] . . . to address

every argument raised by a party or explain every possi-

ble reason supporting its conclusion.” Synopsys, Inc. v.

8 MICROGRAFX, LLC v. GOOGLE INC.

Mentor Graphics Corp., 814 F.3d 1309, 1322 (Fed. Cir.

2016).

Here, we cannot assume that the Board failed to con-

sider the parser source code or Micrografx’s arguments

based on the translation that it produced because these

were not explicitly recited in the Board’s final written

decision. To the contrary, it is evident from the Board’s

description of Pesce that the Board was well aware of the

difference between VRML and computer programming

languages like C++ and understood the process of parsing

a VRML document from VRML into C++. The Board also

considered and asked targeted questions regarding this

process of parsing and Micrografx’s related arguments at

the oral hearing. It is of no moment that the Board did

not explicitly address these aspects in its final written

decision. There are no underlying factual issues that the

Board needed to resolve as a predicate to review of this

issue on appeal because the relevant facts are undisputed.

On the merits, we see no error in the Board’s rejection

of Micrografx’s argument. The question is whether Pesce

does not anticipate because, once parsed into C++, VRML

nodes are separate C++ objects such that no single C++

object satisfies all the claim limitations. But this does not

prevent anticipation of the claimed invention by Pesce.

To be sure, once parsed into C++ Pesce no longer satisfies

the claim limitations, but there is no merit to Micrografx’s

argument that the claim limitations must be satisfied

after translation has occurred. Anticipation does not

require that Pesce satisfy all the claim limitations at

every stage of implementation—i.e., both in VRML and

once parsed into C++. The fact that Pesce does not antic-

ipate in C++ is irrelevant if the VRML version of Pesce

does anticipate the invention. The Board purposely

focused its analysis on the VRML version. The claims

specify that the interactive vector object is “operable to be

downloaded over a network.” ’854 patent, col. 12 ll. 23–

24. Pesce is quite clear that the VRML version is down-

MICROGRAFX, LLC v. GOOGLE INC. 9

loaded over a network, not the parsed C++ version. Only

after a VRML document is downloaded can it then be

parsed into C++. Also, the claims of the ’854 and ’732

patents do not require that the interactive vector object

correspond to a computer programming language such as

C++, as opposed to VRML. We see no error in the Board’s

determination.

III

Third, Micrografx argues that the Board’s decision is

not supported by substantial evidence in several respects.

A

Micrografx challenges the Board’s finding that Pesce

discloses “an interactive vector object” as required by the

relevant claims of the ’854 and ’732 patents. The Board

construed “an interactive vector object” as “a computer

software object that includes at least a mathematic de-

scription of a graphical image and one definition so that

the graphical image responds to events.” J.A. 11. In its

decision, the Board relied on an example from Pesce that

describes how to create a hyperlinked image of a sun in

VRML, specifically using a Separator node, a Material

node, a WWWAnchor node, and a Sphere node. The

example is as follows with node identifications added. 2

2 Our labeling of the nodes corresponds to the label-

ing that the parties themselves utilized. Note, the final

brace of the Separator group node is excluded from view

since in Pesce this example continues with additional

nodes after the WWWAnchor node that are included

within the same Separator group node.

10 MICROGRAFX, LLC v. GOOGLE INC.

J.A. 948–49. In this example, all of the different nodes

are grouped together by a Separator node. Within the

Separator node is a Material node to define the color

yellow and then a WWWAnchor node to link the object to

a URL address. Within the WWWAnchor node is a

Sphere node to define the shape of the object displayed.

The Board found that the WWWAnchor node in this

example discloses an interactive vector object because it is

a computer software object, it contains the Sphere node,

which discloses a mathematical description of a graphical

image, and, as a grouping node, WWWAnchor links all of

the nodes it contains to the URL specified in its name

field so that the graphical image responds to a user’s

click.

Micrografx argues that the Board ignored characteris-

tics of computer software objects like the WWWAnchor

node. Micrografx asserts that, as a container object,

WWWAnchor does not take on or “inherit” the attributes

MICROGRAFX, LLC v. GOOGLE INC. 11

of the nodes it contains, such as the Sphere node, and

therefore cannot disclose a mathematical description of a

graphical image. 3 However, Micrografx fails to appreciate

how the different nodes in Pesce work together and can be

grouped collectively within a grouping node, such as

WWWAnchor, to create a single graphical object that

discloses an interactive vector object, such as the example

of a hyperlinked sun. Expert testimony from both sides

agreed that the Sphere node in VRML is within the

WWWAnchor node and by clicking anywhere within the

area defined by the Sphere node, a user will be directed to

the URL defined by the WWWAnchor node. Because the

Sphere node is contained within the WWWAnchor node

and defines its graphical representation, the WWWAn-

chor node unquestionably exhibits the attributes of the

Sphere node and discloses a mathematic description of a

graphical image. We find substantial evidence to support

the Board’s finding that Pesce discloses an interactive

vector object.

B

Next, Micrografx argues that substantial evidence

does not support the Board’s finding that Pesce discloses

“a property defining the command to be performed in

response to the event within the active area of the vector

object,” as required by various claims of the ’854 patent.

The Board construed this limitation as a “characteristic

describing an instruction to be carried out by computer

software in response to a user action.” J.A. 14. In its

petition, Google asserted that “[t]he WWWAnchor node

that anchors another node to a URL corresponds to the

3 Micrografx also contends that once VRML is

parsed into C++ objects, the WWWAnchor node no longer

contains the Sphere node. We have elsewhere rejected

Micrografx’s claim that anticipation should be measured

based on the objects as translated into C++.

12 MICROGRAFX, LLC v. GOOGLE INC.

claimed property.” J.A. 22 (alteration in original) (inter-

nal quotation marks omitted). The Board found that

Google had “identifie[d] the field within WWWAnchor

that specifies the URL of the anchor and include[d] an

excerpt of code from Pesce that links WWWAnchor to the

root URL of the Web. Pesce describes that if a user clicks

on the Sun, a message will be sent to go to the page

http://www.w3.org.” J.A. 23 (internal citations omitted).

In other words, the Board found that the name field

within the WWWAnchor node discloses this limitation

because it specifies the URL address that is linked to all

of the nodes contained within the WWWAnchor node.

Micrografx asserts that the claim language, “a proper-

ty defining the command to be performed,” requires that

the property reference a behavior. But, Micrografx ar-

gues, the name field of the WWWAnchor node simply lists

the URL address without indicating any behavior. Micro-

grafx points out that narrowly focusing on the name field

by itself would not reveal any information regarding what

command the computer software is supposed to carry out

in response to a user action. The problem is that Micro-

grafx overlooks the surrounding context of the name field

as part of the WWWAnchor node, a context on which the

Board itself relied.

The Board did not err in finding that the name field in

context, as part of the WWWAnchor node, satisfies this

limitation. All nodes within the WWWAnchor node are

linked to the same URL address. Since fields are where a

node “store[s] information specific to itself,” one must also

look to the surrounding context—the node type, i.e.

WWWAnchor—to understand how the name field func-

tions. Here, the name field is part of the WWWAnchor

node, which links all of the nodes it contains to a URL

address and loads the URL in response to a user click.

The name field as part of the WWWAnchor node meets

the Board’s construction of this limitation. It is a “charac-

teristic describing an instruction to be carried out by

MICROGRAFX, LLC v. GOOGLE INC. 13

computer software in response to a user action,” J.A. 14,

namely loading the linked URL address when a user

clicks on the graphical image. Substantial evidence

supports the Board’s finding that Pesce discloses this

limitation.

C

Lastly, Micrografx challenges the Board’s finding that

Pesce discloses the claim limitation “the data further

comprising . . . a location of the vector object,” present in

claims 3, 12, 57, and 66 of the ’854 patent and claims 3

and 4 of the ’732 patent. Dependent claim 3 of the ’854

patent is illustrative. Independent claim 1 requires:

An interactive vector object . . . comprising:

data operable to be downloaded to a client

system connectable to the network and in

connection with a vector graphics network

file to render an image of the vector object

on the client system . . . .

Claim 3 depends on claim 1 and requires that the “da-

ta further compris[e] a type, a size, and a location of the

vector object.” Micrografx challenges only the Board’s

finding regarding the last part of this limitation—“a

location of the vector object.”

Before the Board, Google pointed to an example de-

scribed in Pesce of a hyperlinked image of an earth posi-

tioned relative to a hyperlinked image of a sun in VRML,

specifically using a Separator node, a Transform node, a

Material node, a WWWAnchor node, and a Sphere node

as shown by the following (with node identifications

added). 4

4 Our labeling of the nodes corresponds to the label-

ing that the parties themselves utilized. Note, the final

14 MICROGRAFX, LLC v. GOOGLE INC.

J.A. 953–54. The Board found that the Transform node in

this VRML example from Pesce discloses this limitation—

i.e. “an interactive vector object . . . comprising . . . data

. . . comprising . . . a location of the vector object.” ’854

patent, col. 12 ll. 22–37. We see no error in the Board’s

determination. In this example, all of the different nodes

related to the hyperlinked image of an earth are grouped

together by a Separator node. Within the Separator node

brace of the Separator group node is excluded from view

since in Pesce this example continues with additional

nodes after the WWWAnchor node that are included

within the same Separator group node.

MICROGRAFX, LLC v. GOOGLE INC. 15

is a Transform node, which defines “the position, orienta-

tion, size, and center of any nodes that follow it in a

group.” J.A. 941. In this example, the Transform node

defines the position of the earth relative to the position of

the sun—i.e. it defines the location of the vector object.

Micrografx argues that the Transform node of Pesce

does not disclose this limitation. According to Micrografx,

the Transform node can never disclose “the data [of the

interactive vector object] further comprising . . . a location

of the vector object” limitation because the Transform

node in Pesce provides the location information for nodes

that follow it in a group. If the Transform node comes

before the node that corresponds to the interactive vector

object, it will define its location but will not be contained

within the interactive vector object and therefore not

satisfy the claim limitation. If the Transform node comes

after the node that corresponds to the interactive vector

object, it will not define the location of the vector object.

Therefore, Micrografx argues, in this example neither the

Separator node nor the WWWAnchor node can correspond

to the interactive vector object; the Separator node does

not come after the Transform node and therefore the

Transform node does not define its location while the

WWWAnchor node comes after the Transform node and

therefore does not contain the Transform node.

Micrografx overlooks how the different nodes in Pesce

work together and can be grouped within a Separator

node. In this example, the Separator node corresponds to

the vector object. As Pesce makes clear, grouping nodes

such as the Separator node “gather other nodes together,

allowing collections of nodes to be treated as a single

object.” J.A. 1190. On its own, the Separator node has no

graphical representation on a user’s screen. Rather, its

appearance depends on the various nodes contained

within the Separator node. In this example, the Separa-

tor node is used to group the Transform node, the Materi-

al node, the WWWAnchor node, and the Sphere node,

16 MICROGRAFX, LLC v. GOOGLE INC.

which collectively produce the hyperlinked image of a blue

earth. Since the Transform node comes first within this

group, it defines the location of nodes that follow it. Thus,

the Transform node defines the location of the hyper-

linked image of a blue earth, defining its position relative

to that of the sun. Since the Separator node’s graphical

appearance is a hyperlinked image of a blue earth and the

Transform node defines the location of this image, the

Transform node discloses “the data further comprising . . .

a location of the vector object” limitation. Moreover, there

is no requirement in the claims that the data disclose the

location of the entire vector object as opposed to the

location of a part of the vector object. Thus, even though

the Transform node does not come before the Separator

node, by defining the location of the other subsequent

nodes within the Separator node, at a minimum the

Transform node defines the location of a part of the inter-

active vector object. Substantial evidence supports the

Board’s finding.

CONCLUSION

For the foregoing reasons, we affirm the Board’s find-

ing of anticipation by Pesce of claims 1–3, 5, 7, 10–12, 14,

16, 19, 44, 54–57, 59, 61–66, 68, 69, and 71 of the ’854

patent and claims 1–5, 8, 9, 12, 36, and 42 of the ’732

patent.

AFFIRMED