# United States **Court of Appeals**  **for the Federal Circuit**

______________________ ORGANIK KIMYA AS, Appellant

v.

ROHM AND HAAS COMPAN Y, Appellee

______________________

2015

- 1983, 2015

- 2001

______________________ Appeals from the United States Patent and Trad emark Office, Patent Trial and Appeal Board in No s

. IPR2014

- 00185, IPR2014

- 00350.

______________________

Decided: October 11, 2017

______________________

J AMES R. B ARNEY , Finneg an, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for appellant. Also represented by C HARLES C OLLINS -C HASE , E RIC J AY F UES , T IMOTHY P. M C A NULTY

.

R AYMOND N. N IMROD , Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, argued for appellee. Also represented by J AMES B AKER , F RANK C HARLES C ALVOSA , E VANGELINE S HIH ; P HILIP C HARLES S TERNHELL , Washin gton, DC.ORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 2

Before P ROST , Chief Judge, N EWMAN and T ARANTO , Circuit Judges.

N EWMAN , Circuit Judge

. Organik Kimya AS (“Organik”) appeal s the decisions of the Patent T rial and Appeal Board ( “ PTAB ” or “Board”) in two related inter partes review (“ IPR ” ) proceeding s for which Organik i s the P etitioner. The Patent Owner is the Rohm and Haas Company

. The PTAB sustained the patentability of claims 1

– 5 of U.S Patent No. 6,020,435 (“the ’435 Patent”)

, and claims 1

– 7 of its div ision

, U.S. Patent No. 6,252,004 (“the ’004 Patent”)

. 1 On appellate review, we affirm the PTAB’s decision s.
B ACKGROUND

T he ’435 Patent and the ’004 P atent are directed to

process es for preparing certain emulsion polymer s having improved opacity

. The se polymers are described as used in opaque coat ing s s uch as pai nts
, coatings, inks , and othe r products benefitting from opa city. ’435 P atent, col. 1 , l l. 21

– 25. 2 The se products provide opacity by absorbing and scattering light, a property produced by voids (ho llows) within the polymer particles

. Hollow emulsion polymers were previously known

.
’ 435 Patent, col. 1 , l l. 39– 45. The patents at issue state that their method of manufacture produces products of improved opacity and low density, based on the “ disco ver[y] that by providing an aqueous emulsion of a mult i-

1 Organik Kimya AS v. Rohm & Haas Co. , 2015 WL 3430121 (P.T.A.B. May 27, 2015) (“’435 Pat. Op.”); Orga nik Kimya AS v. Rohm & Haas Co. , 2015 WL 3982308 (P.T.A.B. June 26, 2015) (“’004 Pat. Op.”). The appeals have been consolidated.

2 Citations are to the ’435 Patent s pec ification ; the ’004 Patent has the identical specification

.ORGANIK KIMYA AS v. ROHM AND HAAS COMPAN Y 3

st age emulsion polymer

, monomer and swelling agent under conditions wherein there is no substantial polyme rizati on of the monomer, we can enhance the extent of swelling of the multistage emulsion polymer.” Id

. col. 7, l l. 56

– 60.
In the claimed process es a base swelling agent and

excess monomer are introduced into an aqueous emulsion of the pol ymer, under conditions in which there is no substantial polymerization. Id

. col. 7, ll. 43

– 60. T he base permeates the outer shell of the polymer particle and neutralizes the acid core, creating a hydrophilic salt in the

core. Id

. col. 9 ll. 10

– 15. The hydrophilic salt promotes diffusion of water into the core, swelling the polymer particle; when the product is dried the water evaporates, leaving the enlarged hollow core. Id

. col. 9, ll. 15

– 33

. The patents state that suitable swelling agents include fixed

o r permanent bases such as potassium hydroxide. Id

. col. 8, ll. 45

– 52

. D ISCUSSION Standard of Review
These proceedings were instituted on grounds of a nticipation and obviousness. Anticipation is a question of fact; findings of a PTO tribunal are reviewed for support by substantial evidence in the record before the PTO. Kennametal, Inc. v. Ingersoll Cutting Tool Co.

, 780 F.3d 1376, 1381 (Fed. Cir. 2015). Obviousness is a matter of law and receives plenary review on appeal, with any underlying findings of fact reviewed for support by su bstantial evidence in the PTO record

. Id.
In its claim construction, the PTAB relied principally on the intrinsic evidence of the patent specification and the prosecution history, whereby the claim construction receives de novo review on appeal. Microsoft Corp. v. Proxycon n, Inc.

, 789 F.3d 1292, 1297 (Fed. Cir. 2015). Any PTAB factual findings based on extrinsic evidence,ORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 4

such as expert testimony and documents not previously of record, are reviewed for support by substantial evidence in the record before the PTO. Id.

I

The ’435 Patent
The ’435 Patent is entitled “Process for Preparing Po lymer Core Shell Type Emulsions and Polymers Formed Therefrom.” The PTAB institute d review of claims 1

– 5 on the ground of anticipation by U.S. Patent No. 5,360,827 (“Toda”), and obviousness over U.S. Patent No. 5,077,320 (“Touda”). Claim 1 was deemed representative:

1. A process for preparing emulsion polymer pa rticles comprising:
(a) providing an aqueous emulsion of
(i) multi

- stage emulsion polymer, comprising a core stage polymer and a shell stage polymer, wherein the core stage polymer comprises, as polymerized units, from 5 to 100 percent by weight, based on the weight of the core stage pol ymer, of hydrophilic monoethylen ically unsatur ated monomer, and from 0 to 95 percent by weight, based on the weight of the core stage polymer, of at least one nonionic monoethylenically u nsaturated monomer; and wherein the shell stage polymer comprises, as polymerized units, at least 50 percent by wei ght of nonionic m onoethylenically unsaturated mo nomer;ORGANIK KIMYA AS v. ROHM AND HAAS COMPAN Y 5

(ii) monomer at a level of at least 0.5 percent by weight based on the weight of the multi

- stage emulsion polymer; and
(iii) swelling agent under cond itions wherein there is no substa ntial polymerizat ion of the monomer; and
(b) red ucing the level of monomer by at least fifty percent.

The PTAB found that the specification “describes a swelling agent not merely as being capable of permeating a shell and swelling the core of a multistage emulsion polymer in the abstract, but specifically under the cond itions of the specific process for which the agent is to be used.” ’435 Pat. Op. at *6. The PTAB then found that the To da and Touda references provide a general t eaching of hollow multistage emulsion polymers , but concluded, as we shall discuss, that the processes here described and claimed are not anticipated by o r obvious fr o m the cited references.
For the ’435 Patent, Organik argues that the Board adopted an overly narrow interpretation of the term “swelling agent,” and improperly added a “swelling step” into the claims. Organik also a rgues that the Board erred in finding that the Toda and Touda references do not disclose a “swelling agent.”

Claim Construction
Each challenged claim of the ’435 Paten t requires the addition of a swelling agent as part of the claimed pr ocess. The Board construed “swelling agent” as follows:
expressing a structural element, i.e., “ an aqueous or gaseous, volatile or fixed base, or combinations thereof,” in functional ter ms, i.e., “ capable of pe r-ORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 6

meating the shell and swelling the core, in the presence of the multistage polymer and monomer, under the conditions of the specific process for which the agent is to be used. ”
’435 Pat. Op. at *6. Organik states that the Board's construction improperly limited the term “swelling agent” in a manner that inappropriately distinguished the prior art. Organik argues that “the claims

- at

- issue merely recite providing or adding a ‘swelling agent’ and do not recite a swelling step —let alone one that includes the additional limitations imported into the claims by the Board’s construction [.] ” Organik Br. 2. Organik objects to the Board ’ s inclusion in its defin ition that th e s w elling agent operate s “ under the cond itions of the specific pr ocess for which the agent is to be used. ” Organik asserts that the “swelling agent” requires only the addition of any base, without reference to whet her the reaction conditions are suitable for swelling. The Board did not agree with this position , which does not accord with the specification.
The specification describes the swelling agent as a base that permeates the shell and produces swelling by hydration of the hydrophilic core : The core polymer of the multistage emulsion po lymer swells when the core i s subjected to a basic swelling agent that permeates the shell to at least partially neutralize the hydrophilic

- functionality of the core, preferably to a pH of at least about 6 to at least about 10, and thereby result in swelling by hydration of the hydrophilic core polymer.
’435 Patent, col. 9, l l. 10

– 15 . The specification describes the factors that affect these chemical process steps , i ncluding monomer concentration, base concentration, and temperature. See, e.g.

, id

. col. 4, ll. 48

– 55; col. 8, ll. 6 0– 66; col. 8

, l. 66

– col. 9

, l. 6.ORGANIK KIMYA AS v. ROHM AND HAAS COMPAN Y 7

Dr. Schork, the Rohm and Haas expert, testified that the “swelling agent” is defined in the specification with reference to the process conditions in which it is used. ’435 Pat

. Op. at *5. For example, Dr. Schork testifi ed that persons in the field of the invention would “not consider KOH a ‘swelling agent’ when the reaction temperature of [ Toda ] Example 9 is increased to 80oC.” Decl. of F. Joseph Schork ¶93 (quoted in ’435 Pat. Op. at *9) . There was no evidence to contravene either the patent specification or the expert testimony. Organik’s expert Dr. Urban test ified that the function of the base depends on the cond itions of its use. J.A. 1778, ll. 7

– 12 (“Q: My question was: In a given reaction does the function of so dium hydroxide depend on the conditions of the reaction? A: Yes, it doe s . . . .”).

Grammatical A mbiguity

Or ganik also argues that the ’ 435 specification pr ovides an open

- ended definition of “ swelling agent, ” and that the Board improperly adopted the narrower of two possible constructions of a “grammatically ambiguous
passage .” Organik Br. 34

. Organik argues t hat the broader construction of any ambiguity is required by law

, citing In re C uozzo Speed Tech nologies, LLC , 7 93 F.3d 12 68 , 12 75

- 79 (Fed. Cir. 2015), aff ’ d sub nom. Cuozzo Speed Tech nologies, LLC v. Lee

, 136 S. Ct. 2131 (2016)

, as authorizing the broadest reasonable construction in PTO examination practice.
The asserted ambiguity is in the following passage in the specification:
Suitable swelling agents include, are those which , in the presence of the multistage emulsion polymer and monomer, are capable of permeating the shell and swelling the core. Swelling agents may be aqueous or gaseous, volatile or fixed bases or combination s thereof.ORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 8

’435 Patent, col. 8, l l. 40

– 44 (boldface added). Organik
argues that the word “ include ” opens the definition of

“ swelling agent ” to include bases that do not act by pen etrating the shell, that are not used under the co nditio ns described in the specification, and that have not been shown to achieve swelling. Thus

, Organik argues that the presence of a base in the emulsion polymer processes of the prior art anticipates and inval idates the ’435 Patent claims.

The Board did not deem th e criticized words to be ambiguous , observing t hat “ the S pecificat ion’ s use of the word ‘ include, ’ in this instance, is modified by the phrase immediately following it, i.e., ‘ are those which, ’ suggesting that suitable swelling agents include o n ly those which exhibit the functional characteristics thereafter d escribed .” ’ 435 Pat

. Op. at *5

. The Board is correct, for the specification makes clear that the swelling agent is a base capable of permeating the shell and swelling the core under the react ion conditions described in the specific ation. See, e.g.

, Microsoft , 789 F.3d at 1298 ( “ Even under the broadest reasonable interpretation, the Boar d’ s co nstruction ‘ca nnot be divorced from the specification and the recor d evidence,’ and ‘ must be consistent with the one that those skilled in the art would reach .’” ( quoting In re NTP, Inc. , 654 F.3d 1279, 1288 (Fed. Cir. 2011) and In re Cortright , 165 F.3d 1353, 1358 (Fed. Cir. 1999) )).

Error has not been shown in the Board’s construction of “swelli ng agent” as conforming to the conditions and

process in which it is used

, as stated in the specification.
Validity of the ’435 Patent

The Board found that both the Toda and Touda references show the production of voided emulsion polymers, but do not teach the use of a “swelling agent” to produce these polymers. Organik argues that since the references

s how voided emulsion polymerization and the p resence of a base , this suffices to render the c la ims invalid. TheORGANIK KIMYA AS v. ROHM AND HAAS COMPAN Y 9

Board recognized the differences between the prior art and the subject matter described and claimed in the ’ 435 Patent, and held that unpatentability had not been shown.

A

The Toda R eference

T he Board recognized that Toda produces hollow emulsion particles by a different process than is described in the ’435 and ’004 Patents . Toda shows a “ base trea tment ” followed by an “ acid treatment, ” and states that examinat io n by electron microscope showed that its

“ polymer particles have, at first , several small holes, respectively, and with progre ss of the acid treatment these small holes gather to form a uni

- hollow particle. ” Toda, col. 7 , l. 61

– col. 8, l. 3 . As the Board recognized, Toda does not show that the base permeates the shell and neutralizes and swells the core.
Organik directs attenti on to Toda’s Example 9 , which shows the production of hollow polymer particles in a reaction where 3 parts of styrene are added to latex

containing polymer particles at 20oC

, t hen 30 parts of aqueous 10% potassium hydroxide solution are added

, and the mixt ure is heat ed to 80°C for 3 hours ; 80 parts of aqueous 5% methacrylic acid and 50 parts of styrene are then added and h eat ed at 80°C for 3 hours ; finally, 10 parts of 3% potassium sulfate solution are added and the mixture is heat ed at 80°C for 2 hours. Toda, col. 12, ll. 38

– 59. T oda observes that “small holes gather ” to form a h ollow particle during the methacrylic acid treatment step. Toda col. 7

, l. 61

– col. 8

, l. 3.
Organik argues that the potassium hydroxide used by Toda must be a swelling agent bec ause it is a base, and the same type of voided polymer particles are produced by the methods disclosed in Toda as in the ’435 P atent. However, Toda does not describe or show potassiumORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 10

hydroxide as a swelling agent, and states that the hollow void is produced during the methacrylic acid treatment.

Dr. Schork explained the mechanism of Toda’s Exa mple 9 : a t 20oC, the initial reaction temperature of Example 9, the latex shell would be too hard for the potassium hydroxide to permeate ; after heating to 80oC polymeriz ation would occur, such that at no time would the reaction conditions be such that the base could permeate the shell and swell the core under conditions of no substantial polymerization, as required by the ’ 435 Patent claims. ’435 Pat

. Op. at *9 (cit ing Decl. of F. Joseph Schork ¶¶ 86
, 92 ) ; see also Decl. of F. Joseph Schork ¶ 85 (criticizing Organik’s expert’s discussion of Toda Example 9).
Toda’s Example 9 shows the presence of the potass ium hydroxide base, but not as a swelling agent and not under conditions that swell the core. Dr. Schork so ver ified by experimentation, without contradictory evidence from Organik. Organik criticizes Dr. Schork ’ s evidence as

“ irrelevant ” and his methodology “ flawed, ” Organik Br

. 46

– 52. However, Organik did not provide any contrary evidence , a s t he Board observed:
[Organik’s expert] Dr. Prud ’ homme has not pr ovided experimental data demonstrating tha t a di fferent manner of performing the process of Example 9 would have provided results that differ from those observed in Dr. Sc h ork ’ s replications. Nor has the Petitioner provided an y experimental data or evidence establishing that the process of Toda ’ s Example 9 inherently disclosed a “ swelling agent ,” as required by clai ms 1

– 5 of the ’ 435 p atent.

’ 435 Pat

. Op. at *10

. On this appeal, Organik argues that it was error for the Board to require Organik to conduct experiments to support its argument of inherency. Ho wever, the issue is not whether experiments by Organik

were required, but whether Organ i k provided sufficientORGANIK KIMYA AS v. ROHM AND HAAS COMPAN Y 11

evidence and argument to negate and outweigh the ev idence and argument provided by Rohm and Haas. The Board correctly held that Dr. Schork’s experimental evidence outweighed the unsupported criticis m of Dr

. Schork’s methodology.

There was s ubstantial evidence in support of the co nclusion that a person of ordinary skill would not have understood the bases as used by Toda to permeate the polystyrene shell and swell the core

. The PTAB decision that the ’ 435 P atent claims are not anticipated by the Toda reference is affirmed.

B

The Touda R eference
Organik also argues that the ’ 435 Patent claims are invalid on the ground of obviousness in view of Touda ’s use of a base that Organik stat e s is a “swelling agent .” Touda shows a process “for producing polymer particles containing one microvoid or two or more discrete m icrovoids ,” where the base sodium hydroxide is present in the polymerization. Touda, Abstract. Touda’s Example 1B describes , in the Board ’s words,

c harging the same reactor used in the production of the se e d latex with 870 parts of deionized w ater, 100 parts of the filled polymer latex, 1 part of

so dium dodecyl -benzenesulfate, 30 parts of tol uene, and 33 parts of a 10% aqueous solution of sodium hydro xide (“ NaOH ” ); stirring the mixture at 80o C for three hours ; adding 300 parts of a 1% aqueous solution of hydrochloric acid ; stirring the mixture at 80o C for three hours ; cooling the rea cti on mixture to room temperature; and removing the organic s olvent under reduced pressure.

’ 435 Pat

. Op. at *12 (citing Touda, col. 7, ll. 4

– 24)

. Touda states that microvoids are formed in the polymer particles during the step of acid treatment. Touda, col. 5, l l. 59

– 64.ORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 12

Dr. Schork replicated Touda ’ s Example 1, and reported that “ no observable swelling occurred during the reported

‘ swelling stage

. ’” Decl. of F. Joseph Schork ¶ 151. Dr. Schork concluded that the experiment “ demonstrates that the NaOH used in Example 1 is not capable of permeating the shell and swelling the core of the emulsion under t he conditions described therein .” I d. ¶ 13 0.

The Board referred to Dr. Schork ’ s explanation that

“ the core and the shell are only slightly acidic ,” i d. ¶ 128, and that the shell of the Touda polymer would be too har d for the bases to permeate under the conditions described in Example 1. Dr. Schork concluded, and the Board agreed, that “ the NaOH would be unlikely to permeate and neutralize any part of the particle. Certainly, NaOH would not permeate the shell and swell the core. Instead, to the extent that any swelling occurred, it would take place in the shell. ” ’ 435 Pat

. Op. at *13 (citing Decl. of F. Joseph Schork at ¶ 128)

. Organik presented no contradi ctory evidence.
Organik’ s expert Dr. Prud’ homme criticized Dr. Schork’ s procedures and his reasoning

, but did not repr oduce his experiments or any of the Touda examples

. Organi k criticized Dr. Schork for only tr ying to reproduce Example 1 of Touda twice

— but Organik did not itself provide evidence of reproducing Example 1. T he Board reasonably observed the absence of support for Organik ’ s arguments, in the face of Dr. Sc h ork ’ s experimenta tion. ’435 Pat

. Op. at *14 (“ Petitioner has not provided any experimental ev idence contradicting Dr. Schork’ s results

or suppo rting its position tha t Touda uses a ‘swelling agent’ . . . .”).

The Board c oncluded that Touda does not render o bvious the subject matter of claims 1

– 5 of the ’ 435 P atent

. This conclusion is in accordance with law and is suppor ted by substantial evidence in the record.ORGANIK KIMYA AS v. ROHM AND HAAS COMPAN Y 13

II

T he ’ 004 P atent The PTAB held a separate hearing on the ’004 P atent, and instituted review on the grounds that claims 1

– 6 were obvious over the Touda reference, that claim 7 was obvious over the combination of Touda and U.S. Patent No. 5,292,660 (“Overbe e k”), and that claims 1

– 7 were obvious over Toda in view of U.S. Patent No. 2,574,020 (“Crouch”). The challenged claims are directed to a pr ocess in which polymer ization is stopped by “adding an effective amount of one or more polymerization inhibitors or reducing agents,” such as cresol. Claim 1 was deemed representative:
1. A process for preparing emulsion polymer pa rticles comprising:
(a) providing an aqueous emulsion of
(i) multi

- stage emulsion polymer, co mprising a core stage polymer and a shell stage polymer

, wherein the core stage polymer comprises, as polymerized units, from 5 to 100 percent by weight, based on the weight of the core stage polymer, of hydrophilic monoethylenically unsat urated monomer, and from 0 to 95 percent by weight, based on the weight of the core stage polymer, of at least one nonionic monoethylenically unsaturated monomer; and wherein the shell stage polymer comprises, as polymerized units, at least 50 percent by weight of nonionic monoethy lenically unsaturated mon omer; (b) adding an effective amount of one or more polymerization inhibitors or redu c-ORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 14

ing agents to substantially stop any polymerization;
(c) providing monomer at a level of at least 0.5 percent by weight based on the weight of the multi

- stage emulsion po lymer; (d) adding swelling agent; and
(e) reducing the level of monomer by at least fifty percent.
The PTAB construed “swelling agent” as in the ’ 435 Patent opinion, and with respect to the Toda and Touda references the Board reached the same conc lusion as for the ’435 Patent, on substantially the same analysis. The Board also held that it would not have been obvious to modify Example 2 of Touda to include a polymerization inhibitor by substituting cresol for the toluene used in Touda’s Example 2. ’004 Pat. Op. at *9. The Board did not make specific findings as to additional claim limit ations.

On this appeal Organik challenges the same “swelling agent” interpretation as the Board applied to the ’435 Patent. For the reasons we have discussed , we conclude that the Board was correct in interpreting the term “swelling agent” as conforming to the conditions an d

process for which it is used.
Organik again challenges the Board’s findings that the Toda and Touda references do not disclose a “swelling
age nt.” Organik does not challenge the Board’s findings as to the nonobviousness of the substitution of cresol

— a polymerization inhibitor

— for toluene in Example 2 of Touda. Nor does Organik address the other limitations of the ’004 Patent claims

.ORGANIK KIMYA AS v. ROHM AND HAAS COMPAN Y 15

A

The Toda Reference
With respect to Toda, the Board focused on Toda’s E xample 11

. Example 11 follows the same procedure as Example 9, discussed supra , but increases the amount of 10% KOH to 40 parts. Toda, col. 13, ll. 3

– 34. The Board found, consistent with Dr. Schork’s explanations and experimentation, that “a person of ordinary skill in the art would understand that at [th e temperature of 20oC] the polystyrene shell would be too hard for potassium hydroxide to permeate it.” ’004 Pat

. Op. at *13 (citing Decl. o f F. Joseph Schork ¶¶ 100, 149).

The Board also found persuasive Dr. Schork’s replic ation of Example 11 of Toda, with the addition of hydr oquinone as the polymerization inhibitor. Dr. Schork reported “no evidence of swelling during the base trea tment step,” including analysis of TEM [transition electron microscopy] images. ’004 Pat

. Op. at *14 (quoting Dec l. of F. Joseph Schork ¶ 147).
Organik repeats these arguments on this appeal with respect to the ’004 Patent . As for the ’435 Patent , we conclude that no error has been shown in the Board’s analysis.

B

The Touda Reference
With respect to the Touda reference, the Board reached the same conclus ion as to the absence of a “swel ling agent” as for the ’ 435 Pate nt , presenting substantially the same an alysis

. We again conclude Organik has not show n error in that analysis.

T he Board also address ed the recitation of a polymer ization inhibitor in the ’004 Patent claims

. Organik a rgued below that it would have been obvious to modify Touda’s Example 2A to substitute cresol, a po l ymerizat i onORGANIK KIMYA AS v. ROHM AND HAAS COM PANY 16

inhibitor, for the toluene in the Touda example. The Board found persuasive Dr. Schork’s experimentation and explanation that cresol, when added in the polymerization process of Example 2A, prevented the initial form ation of the shell polymer. ’004 Pat

. Op. at *9. Dr. Schork repor ted that after substituting cresol for Touda’s toluene, the

“ monomer was only 2.5% converted to polymer after the required eight hours. ” ’004 Pat

. Op. at *10 (quoting Decl. of F. Joseph Sc hork ¶ 95 ).
Accordingly, the Board held it would not have been obvious to substitute cresol for toluene. Substantial evidence supports the Board’s conclusion.

The Board also discuss ed the additional references cited during institution, viz. the combinatio n of Toda and Crouch and Touda and Overbe ek

. These secondary cit ations do not discl ose a swelling agent as claimed in the ’435 and ’ 004 paten ts, and do not affect the Board’s dec isions.

C ONCLUSION

The Board concluded that neither Toda nor Touda disclo ses or suggests a “swelling agent ” as required by the ’435 and ’004 Pa tents . The Board ’ s decisions are in a ccordance with law and supported by substantial evidence in the record, and are affirmed.

AFFIRMED