GAMBRO LUNDIA AB

Patent Trials and Appeals Board

Jan 5, 2022

2021004066 (P.T.A.B. Jan. 5, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/740,932 12/29/2017 Annmargret HÅKANSSON 0405.000154US01 9194 26813 7590 01/05/2022 MUETING RAASCH GROUP 111 WASHINGTON AVE. S., SUITE 700 MINNEAPOLIS, MN 55401 EXAMINER DEAK, LESLIE R ART UNIT PAPER NUMBER 3799 NOTIFICATION DATE DELIVERY MODE 01/05/2022 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): ptodocketing@mrgs.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANNMARGRET HÅKANSSON, PAR-OLOF HÅKANSSON, MARIE JOHNSSON, ROGER NILSSON, and BENDIK TORVIN Appeal 2021-004066 Application 15/740,932 Technology Center 3700 Before PHILLIP J. KAUFMANN, BRANDON J. WARNER, and MICHAEL L. WOODS, Administrative Patent Judges. WOODS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1 and 3-20. See Appeal Br. 7 (“the Examiner has not articulated a prima facie obviousness rejection of claims 1 and 3-20”). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Gambro Lundia AB. Appeal Br. 3. Appeal 2021-004066 Application 15/740,932 2 CLAIMED SUBJECT MATTER The application is titled “Systems and Methods Including a Human- Shaped Graphical Element.” Spec. 1. Claims 1 and 16 are independent. See Appeal Br. 17-22 (Claims Appx.). We reproduce claim 1, below: 1. An extracorporeal blood treatment system comprising: extracorporeal blood treatment apparatus for use during an extracorporeal blood treatment comprising a blood pressure sensor to sense a patient’s blood pressure; a display apparatus comprising a graphical user interface configured to depict a human-shaped graphical element and a heart-shaped graphical element at least partially within the human-shaped graphical element; and a computing apparatus comprising one or more processors, wherein the computing apparatus is operatively coupled to the extracorporeal blood treatment apparatus and the display apparatus, wherein the computing apparatus is configured to: display on the graphical user interface the human- shaped graphical element and the heart-shaped graphical element at least partially within the human-shaped graphical element using the one or more processors, allow a user to select the heart-shaped graphical element to initiate the blood pressure sensor to perform a blood pressure measurement on the patient, determine the patient’s blood pressure using the blood pressure sensor in response to selection of the heart- shaped graphical element, and display the measured blood pressure of the patient on the graphical user interface. Appeal Br. 17 (Claims Appx.). REFERENCES The prior art relied upon by the Examiner is U.S. Patent Publication Number 2012/0138533 A1, published June 7, 2012, to Curtis et al. (“Curtis”). Final Act. 5. The Examiner also cites, as evidence, U.S. Patent Appeal 2021-004066 Application 15/740,932 3 Publication Number 2004/0031756, published Feb. 19, 2004, to Suzuki et al. (“Suzuki”). REJECTION Claims 1 and 3-20 stand rejected as unpatentable over Curtis. Final Act. 4. ANALYSIS In contesting the rejection, Appellant presents arguments addressing: (1) All claims; (2) Dependent claims 3, 13, 14, and 17; (3) Dependent claims 4, 5, and 18; (4) Dependent claims 6 and 19; and (5) Dependent claims 12-14. See Appeal Br. 7-15. Appellant does not present separate arguments contesting the rejection of claims 7-11, 15, 16, and 20. See id. We treat claim 1 as the representative claim, with claims 7-11, 15, 16, and 20 standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). I. Independent Claims 1 and 16 and Dependent Claims 7-11, 15, and 20 In rejecting independent claim 1, the Examiner finds that Curtis teaches the majority of the limitations recited in the claimed dialysis system, acknowledging, however, that “Curtis does not specifically disclose a heart shaped element.” See Final Act. 5 (citing Curtis ¶¶ 12, 50, 51, 113, Fig. 20). As to the heart-shaped element, the Examiner explains that “the selection of a heart shape does not appear to alter the function of the graphical element. It has been held that matters relating to ornamentation only which have no mechanical function cannot be relied upon to patentably distinguish the claimed invention from the prior art.” Id. (citing Manual of Patent Appeal 2021-004066 Application 15/740,932 4 Examination Procedure (MPEP) § 2144.04(l) (9th edition, rev. June 2020)) § (emphasis added). As to the arrangement of the elements, the Examiner explains that “the location of the icon is within the aesthetic skill of a designer, and does not have a functional relationship to the operation of the machine.” Id. at 2. The Examiner further explains that “the Federal Circuit has held that the arrangement of contents on a display, without an improvement to the underlying technology, is not patent eligible” and “[s]ince the arrangement of elements on a screen is an abstract idea that is not patent eligible subject matter, it follows naturally that such limitations do not patentably distinguish from the prior art.” Id. (citing lnterval Licensing LLC v. AOL, Inc., 896 F.3d 1335, 1345 (Fed. Cir. 2018)) (emphasis added). In contesting the rejection of claim 1, Appellant argues that the “heart- shaped graphical element displayed at least partially within a human-shaped graphical element . . . cannot be ignored.” Appeal Br. 9; see also Reply Br. 7-9 (presenting the same argument). Appellant further contends that “the Examiner appears to argue that such elements are not eligible subject matter,” which is “clear error, . . . because eligibility of the claimed features is not at issue as no § 101 rejection has been presented.” Appeal Br. 8. Appellant explains that “the Examiner’s conflation of § 101 and § 103 is unsupported and incorrect.” Id. at 9. The Examiner has the better position. As to Appellant’s argument that the Examiner has improperly conflated 35 U.S.C. § 101 with 35 U.S.C. § 103 (see Appeal Br. 8-9), we disagree. The Examiner does not reject the claims as ineligible under Appeal 2021-004066 Application 15/740,932 5 Section 101. See Ans. 5 (confirming the same). Rather, the Examiner cites lnterval Licensing as a way to explain that the Federal Circuit does not treat an “arrangement of elements on a screen” to patentably distinguish from the prior art. See Final Act. 2 (citing lnterval Licensing, 896 F.3d at 1345). We find that the rejection falls clearly under Section 103 and that the Examiner finds the heart-shaped graphical element as relating to ornamentation with no mechanical function and, as such, cannot be relied upon to patentably distinguish from Curtis. See Final Act. 5 (citing MPEP § 2144.04(I)). As to Appellant’s argument that the Examiner ignored the claimed limitation (see Appeal Br. 7-8), we also disagree. As explained in the preceding paragraph, the Examiner determines that the recited heart-shaped element does not alter the function of the graphical element, and explains that “matters relating to ornamentation only[,] which have no mechanical function, cannot be relied upon to patentably distinguish the claimed invention from the prior art.” Final Act. 5 (citing MPEP § 2144.04(I)). Here, Curtis discloses a rectangular-shaped selectable graphic that, when selected, initiates blood pressure measurement. See Curtis, Fig. 20; see also Ans. 6 (finding the same). Even though Curtis’s graphical element is rectangular, rather than “heart-shaped,” as required by claim 1, we agree with the Examiner that The rectangular graphical element disclosed by Curtis provides the same function as that claimed by Appellant. Appellant does not establish how a heart shape has a patentable distinction over a prior art shape that performs the same function. In fact, the shape of the element is irrelevant to its mechanical function of its selection on a screen. As such, the heart shape is an aesthetic choice that does not distinguish over the prior art of record. Ans. 6. Appeal 2021-004066 Application 15/740,932 6 Appellant’s arguments do not identify error in the Examiner’s findings. In particular, Appellant does not argue that the recited “heart shaped graphical element at least partially within [a] human-shaped graphical element” is not merely ornamental, or that it serves some mechanical function beyond that taught by Curtis’s rectangular graphical element. See Appeal Br. 7-9; see also Reply Br. 7-9. For the foregoing reasons, we affirm the rejection of claim 1, and of claims 7-11, 15, 16, and 20, which fall therewith. 37 C.F.R. § 41.37(c)(1)(iv). II. Dependent Claims 3 and 17 Claims 3 and 17, which depend from independent claims 1 and 16, respectively, further recite, “wherein the measured blood pressure of the patient is displayed at least partially within the human-shaped graphical element on the graphical user interface.” Appeal Br. 17, 21 (Claims Appx.). In rejecting claims 3 and 17, the Examiner finds that Curtis does not teach this limitation, but determines that “it is within the skill of a worker in the art to move images on a display (such as touching an “OK” button on the Curtis apparatus) in order to provide the most relevant information.” Final Act. 5, 6. The Examiner explains that, “[w]ith regard to claims 3, 17, Curtis does not disclose that the blood pressure measurement is displayed partially within the [human-shaped graphical element, or “HSGE.”] However, the arrangement of elements on a display is not patent-eligible subject matter (see arguments above), and therefore does not patentably distinguish over the cited prior art.” Ans. 6 (emphasis added). In contesting the rejection of claims 3 and 17, Appellant contends that “the rejection is practically so uninformative that Appellant has not been Appeal 2021-004066 Application 15/740,932 7 notified, and is unable to respond” (Appeal Br. 11) and that the “rejection does not identify each of the claimed elements as set forth in claims 3 . . . and 17, or identify where each claimed element is shown in Curtis.” Id. at 10; see also Reply Br. 10 (“the § 103 rejection does not identify each of the claimed elements as set forth in claims 3 . . . and 17, or identify where each claimed element is shown”). The Examiner’s rejection is sufficiently informative, which we understand to be similar to that discussed in relation to independent claim 1. Ans. 6 (addressing claim 1); see also id. (addressing claims 3 and 17 by referring to the “arguments above” with respect to claim 1). Curtis’s Figure 20, reproduced infra § V, depicts a “measured blood pressure of the patient” at 72 beats per minute. We agree with the Examiner that “Appellant does not establish how a heart shape has a patentable distinction over a prior art shape that performs the same function.” See Ans. 6. We further agree with the Examiner that the “shape of the element is irrelevant to its mechanical function of its selection on a screen” and that “the heart shape is an aesthetic choice that does not distinguish over the prior art of record.” Id. As such, even if Curtis’s measured blood pressure is not displayed partially within a heart-shaped graphical element, as required by claims 3 and 17, the claims do not patentably distinguish from Curtis. For the foregoing reasons, we affirm the rejection of claims 3 and 17. III. Dependent Claims 13 and 14 Claims 13 and 14, which depend from claim 1, recites, inter alia, “wherein the human-shaped graphical element further comprises a connection area corresponding to the blood process feature graphical element and the blood process feature graphical element comprises a Appeal 2021-004066 Application 15/740,932 8 connection area corresponding to the human-shaped graphical element.” Id. at 20-21 (emphases added). In rejecting claims 13 and 14, the Examiner finds that “it is within the skill of a worker in the art to move images on a display (such as touching an “OK” button on the Curtis apparatus) in order to provide the most relevant information.” Final Act. 5. In the Answer, the Examiner explains that “[w]hile Appellant’s claim language seems complicated, the claim apparently is attempting to describe [] the screens illustrated in Appellant’s FIGS 3C and 3D.” Ans. 7 (citing Spec. ¶¶ 91, 92). We reproduce Appellant’s Figures 3C and 3D, below: Appeal 2021-004066 Application 15/740,932 9 Appellant’s Figures 3C (top) and 3D (bottom) “depict an exemplary graphical user interface for use in setup and priming of a treatment using an extracorporeal blood treatment system.” Spec. 15. In particular, and as these figures relate to the claimed limitation, the Specification describes, the movement affordance indication 232 may be shown on both sides of the dialysate process feature graphical element 214 when the dialysate process feature graphical element 214 is being moved and located between the primary region 220 and the affordance indication 230 (e.g., the movement affordance indication 232 may extend between both the dialysate 30 process feature graphical element 214 and the primary region 220 and dialysate process feature graphical element 214 and the affordance indication 230). Id. at 43-44. Based on this description, the Examiner finds that Figures 16 and 17 illustrate a simple animation sequence in which graphical element 214 Appeal 2021-004066 Application 15/740,932 10 moves from a first location (230) across an area (232) to be in contact with primary region 220 of the display. See Ans. 7. Turning to the prior art, the Examiner explains that the arrangement of elements depicted in Appellant’s Figures 3C and 3D is similarly shown in Curtis’s Figures 16 and 17, reproduced below: Appeal 2021-004066 Application 15/740,932 11 Figures 16 (top) and 17 (bottom) depict “variations of visual presentations of information from a user interface prompting pre-treatment setup of a dialysis system.” Curtis ¶¶ 30, 31. Figure 16 specifically shows “how access to the venous and arterial blood flow of a patient may be achieved” (id. ¶ 30), while Figure 17 specifically shows “how an attachment dislodgment sensor may be attached” (id. ¶ 31). Appellant contends that “the rejection is practically so uninformative that Appellant has not been notified, and is unable to respond” (Appeal Br. 11) and that the “rejection does not identify each of the claimed elements as set forth in claims [13 or 14] or identify where each claimed element is shown in Curtis.” Id. at 10. In particular, Appellant explains that the “Examiner does not identify where certain of these elements (i.e., the connection areas of claims 13 and 14) would be found in Curtis as Appeal 2021-004066 Application 15/740,932 12 connection areas are not mentioned in the Office Action.” Id. at 10; see also Reply Br. 8 (arguing that the Examiner fails “to correspond to the claimed connection areas of claims 13 and 14”). We agree with Appellant. Claims 13 and 14 require the following two connection areas; (1) “the human-shaped graphical element further comprises a connection area corresponding to the blood process feature graphical element,” and (2) “the blood process feature graphical element comprises a connection area corresponding to the human-shaped graphical element.” Appeal Br. 20 (Claims Appx.). Even if the structure shown in Appellant’s Figures 3C and 3D is similar to the structure shown in Curtis’s Figures 16 and 17, as the Examiner submits (Ans. 7), we agree with Appellant that the “Examiner does not identify where certain of these elements (i.e., the connection areas of claims 13 and 14) would be found in Curtis as connection areas are not mentioned in the Office Action.” Appeal Br. 10; see also Reply Br. 8. In particular, the rejection does not account for the recited two connection areas, namely, “the human-shaped graphical element . . . connection area [that] correspond[s] to the blood process feature graphical element” and “the blood process feature graphical element . . . connection area [that] correspond[s] to the human- shaped graphical element.” See Final Act. 5; see also Ans. 7; see also Appeal Br. 20 (Claims Appx.). Accordingly, we reverse the rejection of claims 13 and 14. Appeal 2021-004066 Application 15/740,932 13 IV. Dependent Claims 4, 5, and 18 Claim 4, which depends from claim 1, recites, inter alia, “graphically animate the heart-shaped graphical element to indicate that the user has initiated a blood pressure measurement.” See Appeal Br. 18. Claim 5 depends from claim 4 and further requires “the heart-shaped graphical element pulsating.” Id. at 18. Claim 18, which depends from claim 16, recites structure similar to claim 4. See id. at 21-22 (“graphically animating the heart-shaped graphical element to indicate that the user has initiated a blood pressure measurement”). In rejecting claims 4, 5, and 18, the Examiner finds that “such a display is within the skill of a worke[r] in the art, as evidenced by [Suzuki], which discloses the use of human figures and animated displays to assist the user in proper operation of a dialysis machine.” Final Act. 5 (citing Suzuki Figs. 10, 11, 13, ¶ 117); see also id. at 7 (addressing claim 18). The Examiner further explains that the claimed features, including the pulsating heart, is non-functional descriptive matter (that is, printed matter). See Ans. 8 (“Because the pulsation of the heart is simply conveying information (blood pressure is being measured), the pulsation does not have a functional relationship between the heart icon and the computer system.”). According to the Examiner, because the pulsating heart does not have a functional relationship to the claimed system, the pulsation of the heart is not given patentable weight. See In re Lowry, 32 F.3d 1579, 1583-84 (Fed. Cir. 1994) (“[w]here the printed matter is not functionally related to the substrate, the printed matter will not distinguish the invention from the prior art in terms of patentability”); see also Ans. 8 (citing the same). Appeal 2021-004066 Application 15/740,932 14 In contesting the rejection of these claims, Appellant argues that “the Examiner has failed to properly consider each of the claimed elements.” Appeal Br. 11. Appellant further explains that “none of the cited portions of Suzuki has been shown to teach, or suggest, animated human figures, a heart- shaped graphical element, or an animated heart-shaped graphical element including pulsating during a set time while a measurement is occurring.” Id. at 12 (emphasis added). Appellant disagrees with the Examiner’s position that the pulsating heart is printed matter, arguing that “[s]ince the claimed heart-shaped graphical element has a functional relationship with, and is dependent on, the extracorporeal blood treatment system, the animated heart-shaped graphical element is not printed matter.”). Reply Br. 9. The Examiner has the better position. As to Appellant’s criticism of Suzuki, the Examiner does not rely on Suzuki for teaching “animated human figures, a heart-shaped graphical element, or an animated heart-shaped graphical element including pulsating,” as Appellant’s argument implies. Compare Final Act. 5, 7, with Appeal Br. 12. Rather, the Examiner relies on Suzuki for teaching “the use of human figures and animated displays to assist the user in proper operation of a dialysis machine” as evidence that displaying an animated image is within the skill of an ordinarily skilled artisan in the art. See Final Act. 5, 7. We agree with the Examiner that Suzuki evinces that a skilled artisan would have known how to display an animated image (id.), and Appellant’s criticism of Suzuki’s teachings (see Appeal Br. 12) is not responsive to the rejection. Appeal 2021-004066 Application 15/740,932 15 As to the printed matter issue, we agree with the Examiner that the limitations recite non-functional descriptive matter and are entitled to no patentable weight. The Federal Circuit has “long held that if a limitation claims (a) printed matter that (b) is not functionally or structurally related to the physical substrate holding the printed matter, it does not lend any patentable weight to the patentability analysis.” In re Distefano, 808 F.3d 845, 848 (Fed. Cir. 2015). In an informative Board of Patent Appeals and Interferences decision, a panel determined that a computer that differs from the prior art solely with respect to descriptive material that does not reconfigure the computer or otherwise alter how the computer functions is nonfunctional printed matter. See Ex parte Mathias, 84 USPQ2d 1276, 1279 (BPAI 2005) (informative) (“a computer that differs from the prior art solely with respect to nonfunctional descriptive material that cannot alter how the machine functions (i.e., the descriptive material does not reconfigure the computer) [is nonfunctional descriptive material]”). Here, Appellant argues that “the animated heart-shaped graphical element is not printed matter” because it “is animated to indicate ‘that the blood pressure measurement is occurring using the blood pressure sensor.’” Reply Br. 9. Appellant’s position, however, is belied by the case law. By simply displaying that blood pressure is flowing, the claimed pulsating heart is merely displaying information, namely, the flow of blood, without actually affecting the claimed system. See Lowry, 32 F.3d 1579, 1583-84; see also Distefano, 808 F.3d at 848. We agree with the Examiner that “the pulsation of the heart claimed by Appellant does not cause the computer to facilitate the retrieval or processing of information” and that “the pulsation Appeal 2021-004066 Application 15/740,932 16 of the heart does not have a functional relationship to the computer or prompt computer action.” Ans. 8 (citation omitted); see also Mathias, 84 USPQ2d at 1279. Appellant fails to persuade us that the functionality of the claimed system is affected by displaying a “pulsating” or “animated” heart. Accordingly, we agree with the Examiner that the features recited in claims 4, 5, and 18 are accorded no patentable weight. For the foregoing reasons, we affirm the rejection of claims 4, 5, and 18. V. Dependent Claims 6 and 19 Claim 6, which depends from claim 1, recites, in part, “a heart rate sensor . . . configured to: allow a user to select a heart rate area of the human-shaped graphical element to initiate the heart rate sensor to perform a heart rate measurement.” Appeal Br. 18 (Claims Appx.). Claim 19, which depends from claim 16, recites similar structure. See id. at 22 (Claims Appx.). In rejecting claims 6 and 19, the Examiner finds that “Curtis discloses the ability to measure a patient’s heart rate,” citing Curtis’s Figure 20. See Final Act. 5, 7. The Examiner determines that Curtis [D]isclose[s] that the machine “offer[s] the user options to change treatment parameters on the visual presentation device 415 such as a touch screen,” wherein the “user interface may display . . . the patient’s blood pressure and pulse rate, the option to measure the instant blood pressure and pulse rate[”] . . . Providing an option to measure the pulse rate via a touch screen is reasonably and readily understood as “allowing a user to select” an area to measure heart rate and then display the measured data. Ans. 8 (citing Curtis ¶ 117). Appeal 2021-004066 Application 15/740,932 17 Appellant argues that the “Examiner has not identified anywhere in Curtis that teaches or suggests allowing a user to select a heart rate area of a human-shaped graphical element to initiate a heart rate measurement” and that Appellant “is unable to respond, without undue speculation as to what teachings are being relied upon.” Appeal Br. 12; see also Reply Br. 10 (“Appellant maintains that the Examiner has not shown where Curtis discloses the claimed elements.”). The Examiner has the better position. To illustrate, we reproduce Curtis’s Figure 20, which the Examiner cites to (see Final Act. 5, 7), below: Figure 20 “shows a variation of a visual presentation of information from the user interface while dialysis treatment is in progress including treatment Appeal 2021-004066 Application 15/740,932 18 statistics that may be presented.” Curtis ¶ 34. In particular, Curtis discloses that “user interface 110 may display status information and offer the user options to change treatment parameters on the visual presentation device 415 such as a touch screen.” Id. ¶ 117 (citing Fig. 20) (bold emphasis to reference numerals omitted here and throughout this Decision). Curtis further discloses that “interface 110 may display, for example, the patient’s blood pressure and pulse rate, the option to measure the instant blood pressure and pulse rate, the patient’s venous blood pressure, the patient’s arterial blood pressure.” Id. Curtis further teaches the use of “a virtual button (i.e. soft key)” and that “user interface 110 may transmit changes made via the touch screen to the dialysis system 105 to alter operating parameters as needed.” Id. Based on Curtis’s teachings shown in Figure 20 and described in paragraph 117, we agree with the Examiner that a skilled artisan would have “reasonably and readily understood” that Curtis teaches an option to measure the pulse rate via a touch screen, thereby “allowing a user to select” an area to measure heart rate and then display the measured data, as recited in claims 6 and 19. See Ans. 8; see also In re Jacoby, 309 F.2d 513, 516 (CCPA 1962) (holding that an ordinarily skilled artisan must be presumed to know something about the art apart from what the references disclose). For the foregoing reasons, we affirm the rejection of claims 6 and 19. Appeal 2021-004066 Application 15/740,932 19 VI. Dependent Claim 122 Claim 12, which depends from claim 1, recites, inter alia, “wherein the human-shaped graphical element is movable proximate the blood process feature graphical element to indicate that venous and arterial blood lines are connecting the patient to a blood circuit of the extracorporeal blood treatment apparatus.” Appeal Br. 20 (Claims Appx.) (emphasis added)). In rejecting claim 12, the Examiner finds that “Curtis illustrates screens that show the amount of fluid removed from the patient, as well as a blood related parameter, connection to the patient, and venous and arterial pressure.” Final Act. 6 (citing Curtis Figs. 16, 17, 20, 23). The Examiner further finds that Curtis’s Figures 16 and 17 depict an arm that moves in position “relative to the ‘Pre-Treatment Setup’ process feature graphical element, and disappears entirely in FIG. 18.” Ans. 9-10. The Examiner further determines, in the alternative, that the movement of the claimed graphical images “is simply conveying information, the movement does not have a functional relationship between the [graphical images] and the computer screen.” See id. at 10. First, Appellant argues that “Curtis does not teach a [graphical user interface] ‘that can be moved by the user in response to changes in the state of the apparatus.’” Appeal Br. 13. Appellant explains that Curtis’s “Figs. 16 and 17 show different graphic elements of an arm in different locations on a screen, each of Figs. 16 and 17 are separate static images that do not display a movable graphical element, or an element movable proximate 2 As discussed previously, we reverse the rejection of claims 13 and 14. Supra § III. As such, our analysis under this section only addresses claim 12. Appeal 2021-004066 Application 15/740,932 20 another graphical element.” Id. at 14 (emphasis added). Appellant further explains that the “Examiner appears to draw a distinction between ‘an animated image’ and a ‘movable image’ . . . without any explanation for such alleged distinction.” Id. Second, and in response to the Examiner’s finding that the limitations recite non-functional descriptive matter, Appellant argues that the “movable human-shaped graphical element is not printed matter,” because the “element indicates when blood lines are connecting the patient to a blood circuit.” Reply Br. 11. The Examiner has the better position. As to Appellant’s first argument that Curtis’s teachings do not satisfy the limitation because “a graphical element movable proximate another graphical element on the same graphical user interface would be movable on a single screen” (Reply Br. 10 (emphasis added)), Appellant’s argument is not commensurate with the scope of claim 12. Claim 12 does not recite structure that requires the graphical element to be “movable on a single screen.” See Appeal Br. 20 (Claims Appx.); see also Ans. 9 (“The claim says the HSGE is ‘movable’ proximate other elements, and does not require the movement to be represented in a single image or screen.”). We agree with the Examiner’s position that Curtis’s Figures 16 and 17 (reproduced supra § III) teach a “human-shaped graphical element” in the form of an arm that moves from the “pre-treatment setup” of Curtis’s Figures 16 and 17 and later disappears in Figure 20 while “dialysis treatment is in progress,” thereby satisfying the claimed limitation. See Ans. 9-10; see also Curtis ¶¶ 30, 31, 34. Appellant’s assertion that “[o]ne skilled in the art would recognize that a graphical element movable proximate another graphical Appeal 2021-004066 Application 15/740,932 21 element on the same graphical user interface would be movable on a single screen” is not supported by any evidence, such as testimony from a skilled artisan. See Reply Br. 10. Accordingly, Appellant’s arguments do not identify error in the Examiner’s determination that Curtis’s Figures 16, 17, 20, and accompanying description teaches the claimed limitation. Moreover, and even if Curtis did not teach the claimed limitation, we agree with the Examiner that the movement of the claimed graphical images “is simply conveying information, the movement does not have a functional relationship between the [graphical images] and the computer screen.” See Ans. 10. As explained similarly above (see supra § III), Appellant’s position that the “movable human-shaped graphical element” is not printed matter because the element “indicates when blood lines are connecting the patient to a blood circuit” (Reply Br. 11 (emphasis added)) is belied by the case law. Appellant acknowledges that the limitation merely “indicates when blood lines are connecting,” (id.), but by simply indicating the connection of blood lines, the claimed limitation is the nonfunctional descriptive displaying of information, without actually affecting the claimed system. See Lowry, 32 F.3d 1579, 1583-84; see also Distefano, 808 F.3d at 848. We agree with the Examiner that the “movement of the HSGE is simply conveying information” and that “the movement does not have a functional relationship between the HSGE and the computer system.” Ans. 10; see also Mathias, 84 USPQ2d at 1279. We further agree with the Examiner that “the HSGE claimed by Appellant does not cause the computer to facilitate the retrieval or processing of information.” Id. at 11. Accordingly, and “[b]ecause the movement of the HSGE does not have a Appeal 2021-004066 Application 15/740,932 22 functional relationship to the computer or prompt computer action, it qualifies as printed matter.” Id. (citation omitted). For the foregoing reasons, we affirm the rejection of claim 12. VII. Conclusion For the foregoing reasons, we affirm the Examiner rejection of claims 1, 3-12, and 15-20, but reverse the rejection of claims 13 and 14, as unpatentable over Curtis. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed 1, 3-20 103 Curtis 1, 3-12, 15-20 13, 14 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED IN PART