Case: 19-1736   Document: 83     Page: 1   Filed: 05/08/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                 ______________________

         ESSITY HYGIENE AND HEALTH AB,
                    Appellant

                            v.

        CASCADES CANADA ULC, TARZANA
              ENTERPRISES, LLC,
                     Appellees
              ______________________

                  2019-1736, 2019-1741
                 ______________________

     Appeals from the United States Patent and Trademark
 Office, Patent Trial and Appeal Board in Nos. IPR2017-
 01902, IPR2017-01921.
                  ______________________

                  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 appellees. Also represented by MICHAEL R.
 ANNIS, KARA RENEE FUSSNER, DAISY MANNING.
                  ______________________
Case: 19-1736      Document: 83     Page: 2    Filed: 05/08/2020




 2       ESSITY HYGIENE AND HEALTH AB   v. CASCADES CANADA ULC



     Before PROST, Chief Judge, MAYER and DYK, Circuit
                          Judges.
 PROST, Chief Judge.
     In this consolidated appeal, Essity Hygiene and Health
 AB appeals two final written decisions in inter partes re-
 view proceedings before the Patent Trial and Appeal Board
 (“Board”). These proceedings challenged two related pa-
 tents, U.S. Patent Nos. 8,597,761 and 9,320,372 (respec-
 tively, “the ’761 patent” and “the ’372 patent”). The Board
 determined that petitioners Cascades Canada ULC and
 Tarzana Enterprises LLC (collectively “Cascades”) met
 their burden of showing that all challenged claims are un-
 patentable as either anticipated under 35 U.S.C. § 102(b) 1
 or rendered obvious under 35 U.S.C. § 103(a) by the cited
 prior art. We affirm.
                                I
                               A
     The ’761 and ’372 patents share a common specification
 and are directed to stacks of interfolded absorbent sheet
 products commonly known as “napkins.” The napkins of
 the claimed invention “comprise a first fold that is deliber-
 ately offset from a parallel line bisecting the sheet, and a
 second fold that preferably bisects the sheet in the perpen-
 dicular direction.” ’761 patent col. 2 ll. 8–11. 2 The offset
 fold causes a napkin’s panels to be asymmetrical such that
 the dimensions of certain panels are smaller than the di-
 mensions of other panels. See, e.g., ’761 patent col. 3 ll. 11–



     1   The claims at issue in this case have effective filing
 dates prior to March 16, 2013. We therefore apply pre-AIA
 § 102(b).
     2   For ease of reference, all citations to the common
 specification are made to the ’761 patent. These citations
 likewise support the ’372 patent.
Case: 19-1736    Document: 83     Page: 3    Filed: 05/08/2020




 ESSITY HYGIENE AND HEALTH AB   v. CASCADES CANADA ULC       3



 17; see also id. at Fig. 3. The folded napkins are arranged
 in a stack by interfolding sheets of adjacent napkins such
 that a panel of an upper napkin in a stack is placed be-
 tween the panels of a lower napkin. See, e.g., ’761 patent
 col. 6 ll. 21–25, 33–39; see also id. at Figs. 4a & 4b.
     Claim 1 of ’761 patent is the sole independent claim
 and is representative of the issues on appeal. Claim 1 of
 the ’761 patent recites:
    1. A stack of interfolded absorbent sheet products,
    comprising:
    a plurality of absorbent sheets
    wherein each sheet comprises a first fold that is off-
    set from a line bisecting said sheet substantially
    parallel to said first fold, and an interfolding fold
    that is substantially perpendicular to said first
    fold,
    wherein the first fold is unidirectionally peaked,
    wherein panels defined by the first fold of each
    sheet directly contact each other, and
    wherein at least one of the panels defined by the
    interfolding fold of each sheet is inserted between
    two panels defined by the interfolding fold of an-
    other sheet in the stack.
 ’761 patent claim 1.
     Claim 1 of the ’372 patent is the sole independent claim
 and is representative of the issues on appeal. Claim 1 of
 the ’372 patent recites:
    1. A stack of interfolded absorbent sheet products,
    comprising
    a plurality of absorbent sheets,
    wherein each sheet comprises a first fold that is off-
    set from a line bisecting said sheet substantially
Case: 19-1736     Document: 83      Page: 4    Filed: 05/08/2020




 4    ESSITY HYGIENE AND HEALTH AB     v. CASCADES CANADA ULC



     parallel to said first fold, and an interfolding fold
     intersecting said first fold,
     wherein said first fold, said intersecting fold, and
     the outer edges of each of the absorbent sheets de-
     fine boundaries for four panels,
     with the panels on opposing sides of the first fold
     having different lengths and contacting each other
     in the stack, and
     wherein each of said absorbent sheets within said
     stack comprises at least one pair of panels sand-
     wiched between a pair of adjacent panels of another
     of said absorbent sheets within said stack.
 ’372 patent claim 1.
                               B
     Cascades’s petitions asserted several grounds of un-
 patentability based, in relevant part, on U.S. Patent
 No. 6,602,575 (“Grosriez”), J.A. 344–53, and U.S. Patent
 Publication No. 2005/0058807 (“Hochtritt”), J.A. 152–61.
      Grosriez describes stacks of interleaved, absorbent
 sheets for use in dispensers. The napkins in Grosriez each
 have “a longitudinal fold line forming a longitudinal border
 and at least one transverse fold line perpendicular to the
 longitudinal fold line.” Grosriez col. 1 ll. 7–11. Grosriez de-
 scribes two alternative embodiments of its absorbent
 sheets, one “folded into four equal parts” and another
 wherein “the longitudinal fold line delimits two sections,
 the transverse dimension one of which differs from the
 transverse dimension of the other.” See Grosriez col. 4
 ll. 42–45, ll. 51–54. Grosriez further describes “[i]ntertwin-
 ing the folded sheets” and explains that intertwining
 “makes it possible . . . for the lower panel of the upper sheet
 to carry (by virtue of the friction forces) the upper panel of
 the intermediate folded sheet out of the opening [of a
Case: 19-1736     Document: 83     Page: 5    Filed: 05/08/2020




 ESSITY HYGIENE AND HEALTH AB    v. CASCADES CANADA ULC      5



 dispenser].” Grosriez col. 5 ll. 60–65 (internal references to
 element numbers omitted).
     Hochtritt relates to a stack of interfolded sheet prod-
 ucts that “comprises a plurality of absorbent sheets each of
 which is itself folded at least twice about axes that are per-
 pendicular to one another,” wherein “[e]ach of the absor-
 bent sheets within the stack comprises at least one pair of
 panels sandwiched between a pair of adjacent panels of an-
 other of the absorbent sheets in the stack.” Hochtritt Ab-
 stract.
                               C
      Cascades filed IPR2017-01902 and IPR2017-01921, re-
 spectively challenging claims 1–26 of the ’761 patent and
 claims 1–20 of the ’362 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
 both proceedings. Relevant to this appeal, the Board is-
 sued final written decisions finding that Cascades had met
 its burden of proving unpatentability with respect to the
 following grounds: (1) claims 1–3, 8, 9, 12, 13 and 23 of the
 ’761 patent and claims 1-3, 8, 9, 12 and 13 of the ’372 patent
 are anticipated by Grosriez; (2) claims 1–3, 6–23, and 26 of
 the ’761 patent and claims 1–3 and 6–20 of the ’372 patent
 are rendered obvious by Hochtritt; and (3) claims 1–26 of
 the ’761 patent and claims 1–20 of the ’372 patent are ren-
 dered obvious by Hochtritt in combination with Grosriez.
 See Cascades Can. ULC v. Essity Hygiene & Health AB, No.
 IPR2017-01902, Paper 51 (PTAB Feb. 1, 2019) (“902 Deci-
 sion”); Cascades Can. ULC v. Essity Hygiene & Health AB,
 No. IPR2017-01921, Paper 51 (PTAB Feb. 1, 2019) (“921
 Decision”).
     Essity timely appealed. We have jurisdiction under
 28 U.S.C. § 1295(a)(4)(A).
Case: 19-1736     Document: 83      Page: 6   Filed: 05/08/2020




 6    ESSITY HYGIENE AND HEALTH AB    v. CASCADES CANADA ULC



                               II
     Anticipation is a question of fact and obviousness is a
 question of law based on underlying facts. Microsoft Corp.
 v. Biscotti, Inc., 878 F.3d 1052, 1068 (Fed. Cir. 2017); In re
 Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). We review
 the Board’s factual findings for substantial evidence and
 the Board’s legal conclusions de novo. IPCom GmbH & Co.
 v. HTC Corp., 861 F.3d 1362, 1369 (Fed. Cir. 2017). “Sub-
 stantial evidence . . . means such relevant evidence 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 argues that the Board’s finding that
 the claims of the ’761 and ’372 patents are unpatentable
 should be reversed for two reasons. First, Essity argues
 that there is no substantial evidence to support the Board’s
 finding that certain claims of the ’761 and ’372 patents are
 anticipated by Grosriez. Second, Essity argues that the
 Board’s misreading of Grosriez infected its obviousness
 analysis and led the Board to erroneously disregard evi-
 dence of non-obviousness. We find Essity’s arguments un-
 persuasive and affirm the Board’s final written decisions
 for the reasons below.
                               A
     Essity first argues that there is no substantial evidence
 to support the Board’s findings that Grosriez anticipates
 claims 1–3, 8, 9, 12, 13, and 23 of the ’761 patent and claim
 1–3, 8, 9, 12 and 13 of the ’372 patent. More specifically,
 Essity argues that the Board misread separate disclosures
 in Grosriez to disclose an embodiment including “a stack of
 intertwined, offset-folded napkins” that is not actually
 taught. Appellant’s Br. 18. We disagree and conclude the
 Board’s decisions are supported by substantial evidence.
     The Board correctly found that Grosriez describes two
 alternative napkins, including one wherein the dimensions
Case: 19-1736     Document: 83     Page: 7    Filed: 05/08/2020




 ESSITY HYGIENE AND HEALTH AB    v. CASCADES CANADA ULC      7



 differ between the transverse sections of the folded sheet.
 902 Decision at 19–20 (quoting Grosriez col. 4 ll. 51–54);
 921 Decision at 19 (same). The Board then correctly found
 that Grosriez explains that the folded sheets “can be inter-
 twined[.]” 902 Decision at 20 (quoting Grosriez col. 5 ll. 54–
 59); 921 Decision at 20 (same). Based on these disclosures,
 and the supporting evidence offered by both parties, the
 Board reasonably concluded that Grosriez teaches each of
 the disputed limitations of claim 1. 902 Decision at 20–23;
 921 Decision at 20–23. The Board further concluded that
 Cascades had met its burden of proving anticipation by
 Grosriez with respect to claims 1–3, 8, 9, 12, 13, and 23 of
 the ’761 patent and claim 1–3, 8, 9, 12 and 13 of the ’372
 patent. See 902 Decision at 23–25; 921 Decision at 23–25.
     We reject Essity’s argument that the Board incorrectly
 combined Grosriez’s disclosure based on a misreading of
 Grosriez. Essity bases its argument on Grosriez’s state-
 ment that “[t]he remainder of the description will relate,
 non-limitingly, to a supple sheet 36 folded in four.” Appel-
 lant’s Br. 16 (quoting Grosriez col. 4 ll. 60–61). According
 to Essity, the reference to supple sheet 36, which is an em-
 bodiment with four equal parts, means that the remaining
 disclosure, including that the napkins may be intertwined
 in a stack, is limited to an embodiment with four equal
 parts. But, as Cascades argues in response, Essity ignores
 that Grosriez expressly states that its reference to supple
 sheet 36 is “non-limiting[].” Appellee’s Br. 21, 43 (quoting
 Grosriez col. 4 ll. 60–61). Further, we conclude that the
 Board carefully considered and reasonably rejected Es-
 sity’s evidence that a person of ordinary skill reading
 Grosriez would not intertwine napkins having panels of
 differing dimensions. We therefore determine the Board’s
 decisions are supported by substantial evidence.
     Accordingly, we affirm the Board’s decisions that
 claims 1–3, 8, 9, 12, 13, and 23 of the ’761 patent and claim
 1–3, 8, 9, 12 and 13 of the ’372 patent are anticipated by
 Grosriez.
Case: 19-1736     Document: 83      Page: 8     Filed: 05/08/2020




 8     ESSITY HYGIENE AND HEALTH AB    v. CASCADES CANADA ULC



                                B
     Essity next argues that the Board erroneously held
 that claims 1–3, 6–23, and 26 of the ’761 patent and claims
 1–3 and 6–20 of the ’372 patent are obvious over Hochtritt
 alone, and that claims 1–26 of the ’761 patent and claims
 1–20 of the ’372 patent are obvious over Hochtritt in com-
 bination with Grosriez.
     In its final written decisions, the Board found that
 Hochtritt does not expressly disclose a “first fold that is off-
 set,” but also found that it would have been obvious to mod-
 ify Hochtritt’s interfolded sheets to have an offset first fold,
 including the offset fold disclosed by Grosriez. 902 Decision
 at 16–18, 25–32; 921 Decision at 15–18. The Board found
 that the record, including Essity’s own evidence, showed
 that offset folds were well-known in the art. And after re-
 viewing the parties’ arguments and evidence, it concluded
 that Cascades had shown by a preponderance of the evi-
 dence that Hochtritt teaches or suggests all of the limita-
 tions of claims 1–3, 6–23, and 26 of the ’761 patent and
 claims 1–3 and 6–20 of the ’372 patent. See 902 Decision
 at 25–36; 921 Decision at 25–35. The Board further con-
 cluded that Cascades had met its burden of proving obvi-
 ousness with respect to claims challenged over Hochtritt
 and Grosriez. See 902 Decision at 36–42; 921 Decision at
 35–41.
     On appeal, Essity argues that the Board’s misreading
 of Grosriez infected its obviousness analysis, causing it to
 improperly discount or ignore Essity’s evidence of non-ob-
 viousness. Essity argues that it showed that Grosriez’s dis-
 closure would have discouraged the combination of
 Hochtritt’s interfolded sheets with Grosriez’s alternative,
 offset embodiment, and that such a combination would
 have been expected to create difficulties in manufacturing,
 packaging, and dispensing the resulting product.
     As stated above, we do not agree that the Board mis-
 read Grosriez. See supra § II(A). We also do not find that
Case: 19-1736    Document: 83      Page: 9   Filed: 05/08/2020




 ESSITY HYGIENE AND HEALTH AB   v. CASCADES CANADA ULC     9



 the Board erred in considering whether the prior art ren-
 dered the challenged claims obvious. With respect to Es-
 sity’s additional arguments, we find that Essity’s
 arguments lack merit and detect no error in the Board’s
 obviousness analysis.
     Accordingly, we affirm the Board’s decisions that the
 challenged claims of the ’761 and ’372 patents are rendered
 obvious by Hochtritt, either alone or in combination with
 Grosriez.
                             III
     We have considered each of Essity’s arguments on ap-
 peal and find them unpersuasive. We therefore affirm the
 Board’s decision that Cascades met its burden of proving
 that claims 1–26 of the ’761 patent and claims 1–20 of the
 ’372 patent are unpatentable.
                       AFFIRMED
