NOTE: This disposition is nonprecedential.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

_____________________ 

2015-2090

______________________ 

Appeal from the United States Patent and Trademark 

Office, Patent Trial and Appeal Board in No. IPR2014-

00532.

______________________ 

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, Washington, 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 a decision by 

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

held that claims 1–4, 6, 8–11, 13, and 15 of U.S. Patent 

No. 5,959,633 (“’633 patent”) were anticipated by U.S. 

Patent No. 5,883,639 (“Walton”). Micrografx also appeals 

the Board’s denial of Micrografx’s motion for leave to 

amend. Because we find that any error in the Board’s

claim construction is harmless, and substantial evidence 

supports the Board’s findings of anticipation, we affirm. 

BACKGROUND

Micrografx owns the ’633 patent, which is directed 

towards a method and system of generating graphical 

images for use in a computer program. ’633 patent, col. 1 

ll. 5–8, 41–59. The patent teaches “a method for producing graphical images [that] includes executing a computer 

program and providing a shape library external to the 

computer program . . . [where t]he shape library defines a 

shape having associated capabilities.” Id. col. 1 ll. 43–46. 

Because of this external shape library that defines shapes 

with associated capabilities, the invention purports to 

overcome a limitation in the prior art that once a computer program was released, the only shapes that could be 

added were those “that the internal tools in the computer 

program [already] kn[ew] how to create and edit.” Id. col. 

1 ll. 32–34. Thus, “[t]he invention . . . allows for the 

integration of additional shapes with an existing computer program without modifying that existing program.” Id.

col. 2 ll. 6–9. Claim 1 is representative.

A computerized system comprising:
MICROGRAFX, LLC v. GOOGLE INC. 3

a storage medium;

a processor coupled to the storage medium;

a computer program stored in the storage 

medium, the computer program operable 

to run on the processor, the computer program further operable to:

access an external shape stored 

outside the computer program, the 

external shape comprising external capabilities; and

delegate the production of a graphical image of the external shape to 

the external capabilities.

’633 patent, col. 8 ll. 53–53.

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

America, Inc., and Samsung Electronics Co., Ltd., (collectively “Google”), filed a petition for inter partes review of 

the ’633 patent. In its petition, Google asserted that 

claims 1–4, 6, 8–11, 13, and 15 were anticipated by Walton.

Walton teaches a computer Visual Software Engineering (“VSE”) system “for designing a prototype of a user 

interface to a product . . . [with] a custom graphics display.” Walton, col. 7 ll. 62–65. It further provides a 

“method of creating and animating graphical objects by 

directly manipulating the graphical objects on a display 

screen.” Id. col. 5 ll. 23–25. As such, “[a]ll graphical 

objects that are created in accordance with [Walton] can 

be stored in a library and reused. They can also be retrieved from the library, changed or customized . . . and 

then stored in the library as a new component.” Id. col. 4 

ll. 25–29. Walton also allows the user to define a “behavior function (graphics manipulation) such that when a 
4 MICROGRAFX, LLC v. GOOGLE INC. 

value change occurs (a behavior event), the [graphical 

object] can change its graphical representation and update itself on the display.” Id. col. 13 ll. 26–30. Walton’s 

graphical objects thus “store [both] behavior as well as 

graphics information.” Id. col. 8 ll. 33–34.

On July 21, 2015, in its final written decision the 

Board construed the claim limitation “an external shape 

stored outside the computer program” as “computer code 

stored outside the computer program that defines a 

graphical image.” J.A. 12. The Board also construed

“delegate” in the limitation “the computer program further operable to . . . delegate the production of a graphical 

image of the external shape to the external capabilities” 

as “to commit or entrust to another.” J.A. 12. Based on 

this construction and expert testimony in the record, the 

Board found by a preponderance of the evidence that 

Walton anticipates the relevant claims of the ’633 patent.

On November 21, 2014, Micrografx filed a motion for 

leave to amend proposing to add new claims 29 and 30, 

which would append “using an external shape template” 

to the “delegation” limitations of claims 1 and 8 in the 

’633 patent. The Board construed this new limitation to 

mean “a template (i.e., a preset format, pattern, or model) 

by which a computer program can access an external 

shape stored outside the computer program, to utilize the 

capabilities of the external shape.” J.A. 30. Google argued that even with this addition the claims would have 

been obvious over the combination of Walton and other 

prior art references directed to software templates, including the textbook The C++ Programming Language, Second Edition, by Bjarne Stroustrup (“Stroustrup”), who

created C++. In denying leave to amend, the Board found 

that Micrografx had failed to show that the proposed 

amended claims were patentable over the prior art of 

record, including, for instance, the combination of the 

Walton and Stroustrup references.
MICROGRAFX, LLC v. GOOGLE INC. 5

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

1375, 1379 (Fed. Cir. 2012). On issues of claim construction, we review the Board’s subsidiary factual determinations concerning extrinsic evidence for substantial 

evidence and ultimate claim construction de novo. In re 

Cuozzo Speed Techs., LLC, 793 F.3d 1268, 1280 (Fed. Cir. 

2015); see also Teva Pharm. U.S.A., Inc. v. Sandoz, Inc., 

135 S. Ct. 831, 841–42 (2015). Since the intrinsic record 

in this case resolves the claim construction question, our 

review is de novo. See Microsoft Corp. v. Proxyconn, Inc., 

789 F.3d 1292, 1297 (Fed. Cir. 2015). 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., 694 F.3d 42, 46 (Fed. Cir. 2012).

I 

First, Micrografx challenges the Board’s construction 

of the limitation “an external shape stored outside the 

computer program,” found in each of the claims. The 

Board construed this limitation to mean “computer code 

stored outside the computer program that defines a 

graphical image.” J.A. 12. Micrografx asserts that the 

proper construction is “computer code stored outside the 

computer program that defines a graphical image and 

that can be developed and provided for use by the computer program without modifying the computer program.” 

Micrografx Br. 22. The question here is whether the 

claims require that the image be developed and provided 

“without modifying the computer program.”
6 MICROGRAFX, LLC v. GOOGLE INC. 

The specification identifies “several technical advantages” of the “invention.” ’633 patent, col. 1 ll. 60; see 

Phillips v. AWH Corp., 415 F.3d 1303, 1315–17 (Fed. Cir. 

2005) (noting importance of the specification for claim 

construction). Most importantly, it states that “[n]ew 

shapes may be added easily without rewriting the underlying computer program” and that “[t]he invention also 

provides an architecture that allows for the integration of 

additional shapes with an existing computer program 

without modifying the existing program.” ’633 patent, col. 

1 ll. 60–62, col. 2 ll. 7–9. In other words, the specification 

describes the invention as allowing the integration of

these “new” or “additional” shapes—external shapes—

without modification of the underlying computer program. 

See Phillips, 415 F.3d at 1315–17.

The prosecution history also supports this understanding. See SAS Inst., Inc. v. ComplementSoft, LLC, 

825 F.3d 1341, 1349 (Fed. Cir. 2016); Phillips, 415 F.3d at 

1317. During initial examination, the patent examiner 

rejected the claims as obvious in light of a prior art reference, the book Developing Visio Solutions (“Visio”). Visio 

discloses a system using a table of data files stored outside the computer program and containing information 

describing different shapes that can be accessed when a 

particular shape is desired. The examiner concluded that 

Visio “suggests the external shape outside the computer 

program as claimed.” J.A. 268. The patentee responded 

that Visio “is limited to editing and creating shapes in 

ways permitted by the tools within the computer program. 

Thus, although shapes may be added [to the table of data 

files] after the release of the computer program . . ., the 

shapes that may be added are limited to shapes that the 

internal tools in the computer program know[] how to 

create and edit.” J.A. 283. Thus, Micrografx distinguished the ’633 invention over the prior art because in 

the prior art it was necessary to modify the computer 

program to add newly developed shapes. 
MICROGRAFX, LLC v. GOOGLE INC. 7

Given the claim language, the specification, and the 

prosecution history, the Board erred in its claim construction. The proper claim construction of “an external shape 

stored outside the computer program” is “computer code 

stored outside the computer program that defines a 

graphical image and that can be developed and provided 

for use by the computer program without modifying the 

computer program.”

Google argues that the Board’s claim construction 

amounted to harmless error. We agree. The harmless 

error rule applies to appeals from the Board. See, e.g., In 

re Watts, 354 F.3d 1362, 1369 (Fed. Cir. 2004). To be 

sure, the Board’s finding of anticipation was predicated on 

its construction of the “external shape stored outside the 

computer program” limitation, and the Board did not 

address anticipation using the correct construction. But 

Walton unquestionably discloses this limitation and 

therefore anticipates.

The only issue here is whether the graphical objects of 

Walton “can be developed and provided for use by the 

computer program without modifying the computer 

program.” The dispute centers on the last part of this 

limitation—“without modifying the computer program.” 

From Walton’s specification, it is clear that new graphical 

objects can be added without modifying the user code—

Walton’s “computer program.” In Walton, when new 

graphical objects are created, they “are stored as objects 

in an object-oriented database system and connected to 

other objects or user code,” i.e., “provided for use,” “in 

accordance with techniques commonly used in objectoriented systems.” Walton, col. 8 ll. 54–63. Walton 

further discloses that a graphical object “consists of two 

major parts, [a] graphic element and the behavior element,” and neither is defined by the computer program—

instead, the appearance and behavior of a graphical object 

are defined in a “graphics editor,” and the behaviors are 
8 MICROGRAFX, LLC v. GOOGLE INC. 

“register[ed]” with a “behavior router.” See id. col. 10 ll. 

36–47, col. 13 ll. 15–17, col. 13 ll.63–65.

Thus, a graphical object may be “developed and provided for use” without ever modifying Walton’s computer 

program. Testimony from Google’s expert confirms this 

point; according to the expert, “[a] person of ordinary skill 

in the art would have recognized that [Walton’s] VSE 

system certainly provided the ability to swap in newly 

created graphical objects in place of pre-existing graphical 

objects for use with existing user source code.” J.A. 1109

(emphasis added). When Google relied on that testimony 

to argue harmlessness in this court, Micrografx had no 

response. Walton discloses the “external shape stored 

outside the computer program” limitation. 

II

Second, Micrografx challenges the Board’s finding 

that Walton discloses the limitation a “computer program 

further operable to . . . delegate the production of a graphical image of the external shape to the external capabilities” in the challenged claims of the ’633 patent. The 

Board construed “delegate” to mean “to commit or entrust 

to another” and this construction is not challenged on 

appeal. J.A. 12. Micrografx argues that the Board’s 

finding is not supported by substantial evidence because 

the Board did not properly apply this construction when it 

failed to sufficiently address whether the user code of 

Walton, the analog to the ’633 patent’s computer program,

actually does the delegating.

We find that substantial evidence supports the 

Board’s finding. In its decision, the Board pointed to 

passages from Walton’s specification and expert testimony evidencing that Walton “delegat[es] the production of a 

graphical image of the external shape to the external 

capabilities.” J.A. 23. For example, “Walton . . . discloses 

that these external graphical objects can be ‘accessed by 

the user code 120’ by connecting to a client server via an 
MICROGRAFX, LLC v. GOOGLE INC. 9

interprocess communications mechanism of a type known 

to those skilled in the art.’” J.A. 342. Walton’s specification further provides that “when a value change occurs (a 

behavior event), the VSE object can change its graphical 

representation and update itself on the display.” Walton, 

col. 13 ll. 27–30. It is also “the application [user code] 

which calls upon particular objects.” Id. col 26 ll. 1–2. As 

the expert testimony cited by the Board notes, “the system of Walton delegates the production of a graphical 

image to the behavior elements (external capabilities) of a 

graphical object (external shape) to allow ‘a graphical 

object [to] . . . be able to draw itself if asked to do so.’” 

J.A. 341; see J.A. 22. Thus, it is clear from the Board’s 

analysis and the evidence in the record that, contrary to 

Micrografx’s assertion, the user code of Walton delegates 

to the behavior elements of a graphical object and thereby 

discloses the “delegation” limitation. The Board’s conclusion that Walton discloses a “computer program further 

operable to . . . delegate the production of a graphical 

image of the external shape to the external capabilities” is 

supported by substantial evidence.

III

Third, Micrografx argues that the Board erred in 

denying leave to amend. We disagree.

Micrografx sought to amend claims 1 and 8 by adding 

“using an external shape template” to the end of the 

limitation, “delegate the production of a graphical image 

of the external shape to the external capabilities.” The 

Board construed “external shape template” to mean “a 

template (i.e., a preset format, pattern, or model) by 

which a computer program can access an external shape 

stored outside the computer program, to utilize the capabilities of the external shape.” J.A. 30. In other words, 

the invention’s computer program is able to delegate the 

production of an external shape by using a template or 

preset format. This template provides the format for how
10 MICROGRAFX, LLC v. GOOGLE INC. 

the computer program accesses the capabilities of the 

external shape for the purpose of drawing the graphical 

image. 

Under this construction, the Board found that the 

proposed claims would have been obvious over the prior 

art of record, including, for instance, the combination of 

Walton and Stroustrup. Stroustrup is a textbook on the 

C++ programming language and includes an entire chapter on the use of templates. These C++ templates “allow 

generic functions . . . to be defined once for a family of 

types” and enable the composition of “code from semiindependent parts.” J.A. 1248. The Board found that a 

person of ordinary skill in the art would have applied 

Stroustrup’s teaching of C++ templates to Walton to 

achieve the described advantages.

Micrografx challenges the Board’s construction of its 

proposed additional claim limitation, “using an external 

shape template,” arguing that it ignores the generic 

nature of an external shape template as described in the 

specification. Micrografx contends that the proper construction is a “generic interface for accessing capabilities 

of an external shape.” That construction is not supported 

by the claim language or the specification. The claim 

language does not state that the template is generic. The 

’633 specification describes the external shape template 

as “compris[ing] pointers to shapes contained within 

shape library 124, which are used by computer graphics 

application 122 to produce graphical images that are not 

supported by internal shapes 310 or 320,” ’633 patent, col. 

4 ll. 63–67, and as “compris[ing] an external action template 332 and an external symbol template 334,” id. col. 4 

ll. 49–50. In other words, the external shape template 

provides the mechanism by which the computer program, 

and the graphics application in particular, accesses external shapes from the shape library. But nowhere does the 

specification describe the external shape template as a 

“generic interface.” Moreover, while Micrografx did argue
MICROGRAFX, LLC v. GOOGLE INC. 11

for its “generic interface” construction before the Board, it 

also stated more generally that “the word template when 

used in the context in which it is used in the claim means 

a preset format, pattern, or model,” language that the 

Board adopted. Google Inc. v. Micrografx, LLC, IPR2014-

00532, Paper 21 at 5 (P.T.A.B. Nov. 24, 2014). The Board 

did not err in its construction of “external shape template.”

Micrografx also argues that there was no motivation 

to combine the Walton and Stroustrup references. Specifically, Micrografx asserts that “one of skill in the art 

would have no motivation to combine teachings from a 

general purpose programming language focused on systems programming with a visual software engineering 

system focused on graphics programming.” Micrografx

Br. 47–48. We disagree. Walton’s system can be implemented in a computer programming language such as 

C++. Walton also contemplates linking “the behavior 

states of the graphical objects . . . to [the] user source 

code.” Walton, col. 9 ll. 36–38. Stroustrup teaches the 

use of C++ templates, such as defining a template function for a family of types and composing code from independent parts. A person of ordinary skill in the art could 

implement this teaching from Stroustrup to link the 

behavior states and the user source code in Walton. The 

combination of this teaching and Walton would allow the 

user source code to access these behavior states of the 

graphical objects. 

Google’s expert testified that “a person of ordinary 

skill in the art would have sought out Stroustrup’s programming manual and readily applied its teachings to the 

system of Walton to achieve the[se] . . . benefits.” J.A. 

1130. The undisputed evidence in the record shows that a 

skilled artisan would have recognized that the combination of Walton and the teachings regarding C++ templates 

in Stroustroup would yield the claimed invention and 

would have combined the two. This amply supports the 
12 MICROGRAFX, LLC v. GOOGLE INC. 

Board’s finding that “a person of ordinary skill in the art 

would have applied the teachings of the Stroustrup manual regarding templates to Walton’s VSE system.” J.A. 

37.

We note the pendency of en banc review by this court 

in In re Aqua Products, Inc. on whether “the PTO [may] 

require the patent owner to bear the burden of persuasion, or the burden of production, regarding patentability 

of the amended claims” in a motion to amend. 833 F.3d 

1335, 1336 (Fed. Cir. 2016) (Mem.). However, the decision would have no impact on the outcome in this case. 

To the extent Micrografx challenges the Board’s claim 

construction of its proposed claims, we resolve the question on the intrinsic record and our review is de novo. See 

Microsoft Corp. v. Proxyconn, Inc., 789 F.3d 1292, 1297 

(Fed. Cir. 2015). To the extent Micrografx challenges the 

evidence supporting the Board’s finding of unpatentability

of its proposed claims, the overwhelming evidence in the 

record supports the Board’s finding, even if Google carried 

the burden of production and the burden of persuasion to 

show unpatentability. The Board did not abuse its discretion by denying Micrografx motion to amend. 

CONCLUSION

We reverse the Board’s claim construction of the “external shape” limitation, affirm the Board’s finding of 

anticipation by Walton of claims 1–4, 6, 8–11, 13, and 15 

of the ’633 patent, and affirm the Board’s denial of Micrografx’s motion for leave to amend.

AFFIRMED