Case: 19-1742    Document: 76    Page: 1   Filed: 05/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

     ESSITY PROFESSIONAL HYGIENE NORTH
                AMERICA LLC,
                   Appellant

                            v.

                CASCADES CANADA ULC,
                         Appellee
                  ______________________

                        2019-1742
                  ______________________

     Appeal from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in No. IPR2017-
 02198.
                  ______________________

                   Decided: May 8, 2020
                  ______________________

    MARTIN JAY BLACK, Dechert LLP, Philadelphia, PA, for
 appellant. Also represented by KEVIN M. FLANNERY;
 MITCHELL EPNER, STEPHEN S. RABINOWITZ, New York, NY.

    RUDOLPH A. TELSCHER, JR., Husch Blackwell LLP, St.
 Louis, MO, for appellee. Also represented by MICHAEL R.
 ANNIS, KARA RENEE FUSSNER, DAISY MANNING.
                 ______________________
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 2     ESSITY PROFESSIONAL HYGIENE    v. CASCADES CANADA ULC



     Before PROST, Chief Judge, MAYER and DYK, Circuit
                          Judges.
 PROST, Chief Judge.
     Essity Professional Hygiene North America LLC ap-
 peals a final written decision in an inter partes review from
 the Patent Trial and Appeal Board. The Board held that
 petitioner Cascades Canada ULC had met its burden to
 show that the claims of U.S. Patent No. 8,273,443 (“the ’443
 patent”) are rendered obvious by the prior art of record. On
 appeal, Essity argues that the Board erred in finding
 claims 2, 7, and 11 of the ’443 patent obvious by placing the
 burden on it to negate a motivation to combine and by fail-
 ing to consider objective evidence of nonobviousness. For
 the below-described reasons, we affirm.
                               I
                               A
     The ’443 patent is directed to a “stack of interfolded ab-
 sorbent sheet products,” otherwise known as “napkins.”
 ’443 patent Abstract. The only claims on appeal are de-
 pendent claims 2, 7, and 11. Each of these claims recite a
 single limitation, requiring that “each napkin within [a]
 stack is oriented oppositely from each preceding and suc-
 ceeding napkin within said stack.” See, e.g., id. at claim 2.
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 ESSITY PROFESSIONAL HYGIENE   v. CASCADES CANADA ULC      3



 The interleaving of napkins with opposite orientation is
 shown by Figure 2(b). See id. at col. 4 ll. 50–55.




 Appellant’s Br. 4 (annotating ’443 patent Fig 2(b) to show
 one napkin in green and the succeeding napkin in yellow
 oppositely oriented).
                               B
     Cascades petitioned for review of claims 1–15 of the
 ’443 patent. Following the Supreme Court’s decision in
 SAS Institute Inc. v. Iancu, 138 S. Ct. 1348 (2018), the
 Board instituted review on all grounds. In its final written
 decision, the Board determined that Cascades had met its
 burden of proving that all challenged claims are unpatent-
 able as obvious over the prior art of record. Cascades Can.
 ULC v. Essity Prof’l Hygiene N.A. LLC, No. IPR2017-
 02198, Paper 40 (PTAB Feb. 25, 2019) (“Board Decision”).
    With respect to claims 2, 7, and 11, the Board deter-
 mined that Cascades had met its burden to prove the
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 4       ESSITY PROFESSIONAL HYGIENE   v. CASCADES CANADA ULC



 claims are obvious based on the combination of Teall 1 in
 view of Heath 2 or ASTM-D4560, 3 and Wheeler. 4 Relevant
 to this appeal, the Board found that Teall does not teach
 oppositely oriented interleaving but that such interleaving
 was taught by Wheeler. See Board Decision at 27–30, 40–
 41. More particularly, the Board found that Wheeler
 demonstrates that there are only two possible orientations
 for interleaving napkins, i.e., same or opposite orientation.
 Id. at 30. After reviewing the parties’ evidence, the Board
 concluded that based on the knowledge in the art, Cascades
 had “persuasively demonstrate[d] that oppositely orienting
 the napkins of Teall would have provided a known, predict-
 able result.” Id.; see also id. at 28 (citing KSR Int’l Co. v.
 Teleflex Inc., 550 U.S. 398, 416 (2007)). Accordingly, the
 Board concluded that Cascades had met its burden of prov-
 ing that claims 2, 7, and 11, are rendered obvious by the
 cited prior art. See id. at 30, 40–41.
     Essity timely appealed. We have jurisdiction under
 28 U.S.C. § 1295(a)(4)(A).
                               II
     Obviousness is a question of law based on underlying
 facts. In re Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000).
 The presence or absence of a motivation to combine refer-
 ences in an obviousness determination is a question of fact.
 Id. We review the Board’s factual findings for substantial



     1   U.S. Patent No. 1,290,801, issued Jan. 7, 1919 (J.A.
 549–555).
     2   U.S. Patent No. 6,699,360 B2, issued Mar. 2, 2004
 (J.A. 575–635).
     3   ASTM-D4560, Standard Specification for Paper
 Napkins for Industrial and Institutional Use, Am. Soc. for
 Testing & Materials (Dec. 1992) (J.A. 570–72).
     4   U.S. Patent No. 1,430,709, issued Oct. 3, 1922 (J.A.
 142–45).
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 ESSITY PROFESSIONAL HYGIENE    v. CASCADES CANADA ULC        5



 evidence and the Board’s legal conclusions de novo. IPCom
 GmbH & Co. v. HTC Corp., 861 F.3d 1362, 1369 (Fed. Cir.
 2017). “Substantial evidence . . . means such relevant evi-
 dence as a reasonable mind might accept as adequate to
 support a conclusion.” Consol. Edison Co. v. NLRB,
 305 U.S. 197, 229 (1938).
     On appeal, Essity does not dispute that each of the lim-
 itations in claims 2, 7, and 11 are disclosed by the prior art.
 See Appellant’s Br. 7–9. Rather, Essity argues that the
 Board’s obviousness determination must be reversed be-
 cause the Board erroneously shifted the burden to Essity,
 requiring it to disprove a motivation to combine the prior
 art, and because the Board failed to consider objective evi-
 dence of nonobviousness. We find Essity’s arguments un-
 persuasive and, for the reasons described below, affirm the
 Board’s decision.
                               A
     Essity first argues that the Board erred in its obvious-
 ness analysis by shifting the burden to Essity to disprove a
 motivation to combine the cited prior art. Appellant’s
 Br. 19 (citing 35 U.S.C. § 316(e) and Dynamic Drinkware,
 LLC v. Nat’l Graphics, Inc., 800 F.3d 1375, 1378 (Fed. Cir.
 2015)). Though we agree that the burden of proving un-
 patentability lies with the petitioner in an inter partes re-
 view proceeding, see 35 U.S.C. § 316(e), we do not find the
 Board improperly shifted the burden in this case.
     In conducting its obviousness analysis of claims 2, 7,
 and 11, the Board correctly kept the burden of proving un-
 patentability on Cascades and reasonably found that Cas-
 cades had met that burden. The Board found that
 Cascades presented evidence showing it would have been
 obvious to a person of ordinary skill in the art to form a
 stack of napkins by interleaving napkins in either the same
 or opposite orientation. Board Decision at 28–29. And the
 Board correctly considered the Supreme Court’s guidance
 in KSR that “[t]he combination of familiar elements
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 6     ESSITY PROFESSIONAL HYGIENE   v. CASCADES CANADA ULC



 according to known methods is likely to be obvious when it
 does no more than yield predictable results. Id. at 28 (cit-
 ing KSR, 550 U.S. at 416). After reviewing the arguments
 and evidence presented by both parties, the Board deter-
 mined that Cascades had persuasively shown that the com-
 bination of Teall and Wheeler would have “provided a
 known, predictable result” and therefore concluded that
 Cascades had met its burden of proving unpatentablility.
 Id. at 30.
      We reject Essity’s suggestion that the Board’s state-
 ments refuting Essity’s evidence amount to shifting the
 burden to Essity to disprove a motivation to combine. See
 Appellant’s Br. 17–19. It was proper for the Board to iden-
 tify the failures in Essity’s arguments. See Ignite USA,
 LLC v. CamelBak Prods., LLC, 709 F. App’x 1010, 1016
 (Fed. Cir. 2017) (“[E]xplaining why a party’s arguments are
 not persuasive does not constitute improper burden shift-
 ing.”). To be sure, the Board is required to provide a rea-
 soned basis for its decision in order to permit this court to
 exercise our duty to review the Board’s decision. See SEC
 v. Chenery Corp., 318 U.S. 80, 94 (1943); In re Nuvasive,
 Inc., 842 F.3d 1376, 1382 (Fed. Cir. 2016).
     Accordingly, we affirm the Board’s conclusion that Cas-
 cades met its burden of proving claims 2, 7, and 11 are ob-
 vious over the cited prior art.
                              B
     Essity next argues that the Board erred by failing to
 consider objective evidence of nonobviousness. Specifi-
 cally, Essity argues that the Board failed to account for the
 fact that both Teall and Wheeler have been available in the
 prior art for almost a century. Essity asserts that the
 Board erroneously “ignored the age of the references” and
 “used age as a motivation to combine.” Appellant’s Br. 28.
 We disagree.
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 ESSITY PROFESSIONAL HYGIENE   v. CASCADES CANADA ULC       7



      Notwithstanding the contradiction between Essity’s
 position that the Board both ignored and relied on the age
 of the references, we find the Board reasonably considered
 the arguments and evidence presented. As an initial mat-
 ter, it is not clear from the record that Essity plainly ad-
 vanced to the Board the same arguments based on objective
 evidence of nonobviousness that Essity now argues the
 Board ignored. See Fresenius USA, Inc. v. Baxter Int’l, Inc.,
 582 F.3d 1288, 1296 (Fed. Cir. 2009) (“If a party fails to
 raise an argument before the trial court, or presents only a
 skeletal or undeveloped argument to the trial court, we
 may deem that argument waived on appeal.”). But even
 assuming Essity’s argument was appropriately preserved,
 the age of the Teall and Wheeler is insufficient to prove the
 challenged claims are not obvious. See, e.g., In re Ethicon,
 Inc., 844 F.3d 1344, 1352 (Fed. Cir. 2017) (“The mere age
 of the references is not persuasive of the unobviousness of
 the combination of their teachings, absent evidence that,
 notwithstanding knowledge of the references, the art tried
 and failed to solve the problem.” (internal citation omit-
 ted)).
      Essity admits that the age of the references alone does
 “not suffice to show nonobviousness,” but argues that “in
 the proper context,” the age constitutes objective evidence
 of nonobviousness. Appellant’s Br. 25. Essity, however,
 fails to identify any evidence purporting to show that this
 is such a context. The record instead shows that the Board
 accounted for the age of the references and found that in
 this case, the age showed that that “orienting napkins op-
 positely in a stack has been known for 100 years,” not that
 the claimed invention is nonobvious. Board Decision at 27–
 28.
     Accordingly, based on the record in this case, we find
 no error in the Board’s obviousness analysis.
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 8     ESSITY PROFESSIONAL HYGIENE   v. CASCADES CANADA ULC



                            III
     We have considered each of Essity’s arguments and
 find them unpersuasive. We therefore affirm the Board’s
 decision that Cascades met its burden of proving that
 claims 2, 7, and 11 of the ’443 patent are unpatentable as
 obvious over the prior art of record.
                       AFFIRMED
