United States Court of Appeals 

for the Federal Circuit ______________________ 

ORGANIK KIMYA AS,

Appellant

v.

ROHM AND HAAS COMPANY,

Appellee

______________________ 

2015-1983, 2015-2001

______________________ 

Appeals from the United States Patent and Trademark Office, Patent Trial and Appeal Board in Nos. 

IPR2014-00185, IPR2014-00350.

______________________ 

Decided: October 11, 2017

______________________ 

JAMES R. BARNEY, Finnegan, Henderson, Farabow, 

Garrett & Dunner, LLP, Washington, DC, argued for 

appellant. Also represented by CHARLES COLLINS-CHASE,

ERIC JAY FUES, TIMOTHY P. MCANULTY.

RAYMOND N. NIMROD, Quinn Emanuel Urquhart & 

Sullivan, LLP, New York, NY, argued for appellee. Also 

represented by JAMES BAKER, FRANK CHARLES CALVOSA,

EVANGELINE SHIH; PHILIP CHARLES STERNHELL, Washington, DC. 
2 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

Before PROST, Chief Judge, NEWMAN and TARANTO,

Circuit Judges.

NEWMAN, Circuit Judge. 

Organik Kimya AS (“Organik”) appeals the decisions 

of the Patent Trial and Appeal Board (“PTAB” or “Board”)

in two related inter partes review (“IPR”) proceedings for 

which Organik is the Petitioner. 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 division, U.S. 

Patent No. 6,252,004 (“the ’004 Patent”).1 On appellate 

review, we affirm the PTAB’s decisions. 

BACKGROUND

The ’435 Patent and the ’004 Patent are directed to 

processes for preparing certain emulsion polymers having 

improved opacity. These polymers are described as used 

in opaque coatings such as paints, coatings, inks, and 

other products benefitting from opacity. ’435 Patent, col. 

1, ll. 21–25.2 These products provide opacity by absorbing 

and scattering light, a property produced by voids (hollows) within the polymer particles. 

Hollow emulsion polymers were previously known. 

’435 Patent, col. 1, ll. 39–45. The patents at issue state 

that their method of manufacture produces products of 

improved opacity and low density, based on the “discover[y] that by providing an aqueous emulsion of a multi-

 

1 Organik Kimya AS v. Rohm & Haas Co., 2015 WL 

3430121 (P.T.A.B. May 27, 2015) (“’435 Pat. Op.”); Organik 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 specification; the

’004 Patent has the identical specification. 
ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY 3

stage emulsion polymer, monomer and swelling agent 

under conditions wherein there is no substantial polymerization of the monomer, we can enhance the extent of 

swelling of the multistage emulsion polymer.” Id. col. 7, 

ll. 56–60.

In the claimed processes a base swelling agent and 

excess monomer are introduced into an aqueous emulsion 

of the polymer, under conditions in which there is no 

substantial polymerization. Id. col. 7, ll. 43–60. The 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 

or permanent bases such as potassium hydroxide. Id. col. 

8, ll. 45–52. 

DISCUSSION

Standard of Review

These proceedings were instituted on grounds of anticipation 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 substantial 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. 

Proxyconn, Inc., 789 F.3d 1292, 1297 (Fed. Cir. 2015). 

Any PTAB factual findings based on extrinsic evidence, 
4 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

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 Polymer Core Shell Type Emulsions and Polymers Formed 

Therefrom.” The PTAB instituted 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 particles 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 polymer, of hydrophilic monoethylenically unsaturated 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 monoethylenically unsaturated monomer; 
ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY 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 conditions wherein there is no substantial polymerization of the 

monomer; and

(b) reducing 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 conditions of the specific process for which the agent is to be 

used.” ’435 Pat. Op. at *6. The PTAB then found that the 

Toda and Touda references provide a general teaching of 

hollow multistage emulsion polymers, but concluded, as 

we shall discuss, that the processes here described and 

claimed are not anticipated by or obvious from 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 argues 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 Patent requires the 

addition of a swelling agent as part of the claimed process. 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 terms, i.e., “capable of per-
6 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

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 definition that the swelling agent operates “under the conditions of the specific process for which the agent is to be 

used.” Organik asserts that the “swelling agent” requires 

only the addition of any base, without reference to whether 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 polymer swells when the core is 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, ll. 10–15. The specification describes 

the factors that affect these chemical process steps, including monomer concentration, base concentration, and 

temperature. See, e.g., id. col. 4, ll. 48–55; col. 8, ll. 60–66; 

col. 8, l. 66–col. 9, l. 6.
ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY 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 testified 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 testified that the function of the base depends on the conditions of its use. J.A. 1778, ll. 7–12 (“Q: My question was: 

In a given reaction does the function of sodium hydroxide 

depend on the conditions of the reaction? A: Yes, it does . . 

. .”).

Grammatical Ambiguity

Organik also argues that the ’435 specification provides 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 that the 

broader construction of any ambiguity is required by law, 

citing In re Cuozzo Speed Technologies, LLC, 793 F.3d 

1268, 1275-79 (Fed. Cir. 2015), aff’d sub nom. Cuozzo 

Speed Technologies, 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 combinations thereof.
8 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

’435 Patent, col. 8, ll. 40–44 (boldface added). Organik 

argues that the word “include” opens the definition of 

“swelling agent” to include bases that do not act by penetrating the shell, that are not used under the conditions 

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 invalidates the ’435 Patent 

claims.

The Board did not deem the criticized words to be 

ambiguous, observing that “the Specification’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 only those which 

exhibit the functional characteristics thereafter described.” ’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 reaction conditions described in the specification. See, e.g., Microsoft, 789 F.3d at 1298 (“Even under 

the broadest reasonable interpretation, the Board’s construction ‘cannot be divorced from the specification and 

the record 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 “swelling 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 

show voided emulsion polymerization and the presence of 

a base, this suffices to render the claims invalid. The
ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY 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 Reference

The 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 treatment” followed by an “acid treatment,” and states that 

examination by electron microscope showed that its 

“polymer particles have, at first, several small holes, 

respectively, and with progress 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 attention to Toda’s Example 9, which 

shows the production of hollow polymer particles in a 

reaction where 3 parts of styrene are added to latexcontaining polymer particles at 20oC, then 30 parts of 

aqueous 10% potassium hydroxide solution are added, 

and the mixture is heated to 80°C for 3 hours; 80 parts of 

aqueous 5% methacrylic acid and 50 parts of styrene are 

then added and heated at 80°C for 3 hours; finally, 10 

parts of 3% potassium sulfate solution are added and the 

mixture is heated at 80°C for 2 hours. Toda, col. 12, ll. 

38–59. Toda observes that “small holes gather” to form a 

hollow 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 because it is a base, and 

the same type of voided polymer particles are produced by 

the methods disclosed in Toda as in the ’435 Patent. 

However, Toda does not describe or show potassium 
10 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

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 Example 9: at 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 polymerization 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 (citing 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 potassium hydroxide base, but not as a swelling agent and not 

under conditions that swell the core. Dr. Schork so verified 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, as the Board observed: 

[Organik’s expert] Dr. Prud’homme has not provided experimental data demonstrating that a different manner of performing the process of 

Example 9 would have provided results that differ 

from those observed in Dr. Schork’s replications. 

Nor has the Petitioner provided any experimental 

data or evidence establishing that the process of 

Toda’s Example 9 inherently disclosed a “swelling 

agent,” as required by claims 1–5 of the ’435 patent.

’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. However, the issue is not whether experiments by Organik 

were required, but whether Organik provided sufficient 
ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY 11

evidence and argument to negate and outweigh the evidence and argument provided by Rohm and Haas. The 

Board correctly held that Dr. Schork’s experimental 

evidence outweighed the unsupported criticism of Dr. 

Schork’s methodology.

There was substantial evidence in support of the conclusion 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 Patent claims are not anticipated by the 

Toda reference is affirmed.

B 

The Touda Reference

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 states is a “swelling agent.” 

Touda shows a process “for producing polymer particles

containing one microvoid or two or more discrete microvoids,” where the base sodium hydroxide is present in 

the polymerization. Touda, Abstract. Touda’s Example 

1B describes, in the Board’s words,

charging the same reactor used in the production 

of the seed latex with 870 parts of deionized water, 100 parts of the filled polymer latex, 1 part of 

sodium dodecyl-benzenesulfate, 30 parts of toluene, and 33 parts of a 10% aqueous solution of sodium hydroxide (“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 reaction mixture to room temperature; and removing 

the organic solvent 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, ll. 59–64. 
12 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

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 the 

conditions described therein.” Id. ¶ 130. 

The Board referred to Dr. Schork’s explanation that 

“the core and the shell are only slightly acidic,” id. ¶ 128,

and that the shell of the Touda polymer would be too hard 

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 contradictory evidence.

Organik’s expert Dr. Prud’homme criticized Dr. 

Schork’s procedures and his reasoning, but did not reproduce his experiments or any of the Touda examples. 

Organik criticized Dr. Schork for only trying to reproduce 

Example 1 of Touda twice—but Organik did not itself 

provide evidence of reproducing Example 1. The Board 

reasonably observed the absence of support for Organik’s 

arguments, in the face of Dr. Schork’s experimentation. 

’435 Pat. Op. at *14 (“Petitioner has not provided any 

experimental evidence contradicting Dr. Schork’s results 

or supporting its position that Touda uses a ‘swelling 

agent’ . . . .”).

The Board concluded that Touda does not render obvious the subject matter of claims 1–5 of the ’435 Patent. 

This conclusion is in accordance with law and is supported by substantial evidence in the record.
ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY 13

II

The ’004 Patent

The PTAB held a separate hearing on the ’004 Patent, 

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 (“Overbeek”), 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 process in which polymerization 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 particles 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 polymer, 

of hydrophilic monoethylenically unsaturated 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 

monoethylenically unsaturated monomer;

(b) adding an effective amount of one or 

more polymerization inhibitors or reduc-
14 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

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 polymer;

(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 conclusion 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 limitations.

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 and 

process for which it is used.

Organik again challenges the Board’s findings that 

the Toda and Touda references do not disclose a “swelling 

agent.” 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 COMPANY 15

A 

The Toda Reference

With respect to Toda, the Board focused on Toda’s Example 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 [the temperature of 20oC]

the polystyrene shell would be too hard for potassium 

hydroxide to permeate it.” ’004 Pat. Op. at *13 (citing 

Decl. of F. Joseph Schork ¶¶ 100, 149).

The Board also found persuasive Dr. Schork’s replication of Example 11 of Toda, with the addition of hydroquinone as the polymerization inhibitor. Dr. Schork 

reported “no evidence of swelling during the base treatment step,” including analysis of TEM [transition electron 

microscopy] images. ’004 Pat. Op. at *14 (quoting Decl. 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 conclusion as to the absence of a “swelling agent” as for the ’435 Patent, presenting substantially 

the same analysis. We again conclude Organik has not 

shown error in that analysis.

The Board also addressed the recitation of a polymerization inhibitor in the ’004 Patent claims. Organik argued below that it would have been obvious to modify 

Touda’s Example 2A to substitute cresol, a polymerization 
16 ORGANIK KIMYA AS v. ROHM AND HAAS COMPANY

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 formation of 

the shell polymer. ’004 Pat. Op. at *9. Dr. Schork reported 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 Schork ¶ 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 discussed the additional references 

cited during institution, viz. the combination of Toda and 

Crouch and Touda and Overbeek. These secondary citations do not disclose a swelling agent as claimed in the 

’435 and ’004 patents, and do not affect the Board’s decisions.

CONCLUSION

The Board concluded that neither Toda nor Touda 

discloses or suggests a “swelling agent” as required by the 

’435 and ’004 Patents. The Board’s decisions are in accordance with law and supported by substantial evidence 

in the record, and are affirmed.

AFFIRMED