  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 Trade-
mark 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, Washing-
ton, 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 (hol-
lows) 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 “discov-
er[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.”); Organ-
ik 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 polymer-
ization 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 an-
ticipation 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 sub-
stantial 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 Pol-
ymer 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 par-
    ticles 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 poly-
           mer, of hydrophilic monoethyleni-
           cally 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 un-
           saturated monomer; and wherein
           the shell stage polymer comprises,
           as polymerized units, at least 50
           percent by weight of nonionic mo-
           noethylenically unsaturated mon-
           omer;
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 condi-
           tions wherein there is no substan-
           tial    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 condi-
tions 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 pro-
cess. 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 defini-
tion that the swelling agent operates “under the condi-
tions 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 wheth-
er 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 pol-
    ymer 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, in-
cluding 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 testi-
fied that the function of the base depends on the condi-
tions 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 pro-
vides 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 pene-
trating 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 de-
scribed.” ’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 specifica-
tion. See, e.g., Microsoft, 789 F.3d at 1298 (“Even under
the broadest reasonable interpretation, the Board’s con-
struction ‘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 refer-
ences 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 treat-
ment” 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 latex-
containing 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 Exam-
ple 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 polymeriza-
tion 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 potassi-
um hydroxide base, but not as a swelling agent and not
under conditions that swell the core. Dr. Schork so veri-
fied 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 pro-
     vided experimental data demonstrating that a dif-
     ferent 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 pa-
     tent.
’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. How-
ever, 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 evi-
dence 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 con-
clusion 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 mi-
crovoids,” 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 wa-
   ter, 100 parts of the filled polymer latex, 1 part of
   sodium dodecyl-benzenesulfate, 30 parts of tolu-
   ene, and 33 parts of a 10% aqueous solution of so-
   dium 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 reac-
   tion 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 contradic-
tory evidence.
    Organik’s expert Dr. Prud’homme criticized Dr.
Schork’s procedures and his reasoning, but did not repro-
duce 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 ob-
vious the subject matter of claims 1–5 of the ’435 Patent.
This conclusion is in accordance with law and is support-
ed 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 pro-
cess 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 par-
   ticles comprising:
      (a) providing an aqueous emulsion of
        (i) multi-stage emulsion polymer, com-
        prising 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 unsatu-
        rated 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 mono-
        mer;
      (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 pol-
          ymer;
      (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 limita-
tions.
    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 Ex-
ample 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 replica-
tion of Example 11 of Toda, with the addition of hydro-
quinone as the polymerization inhibitor. Dr. Schork
reported “no evidence of swelling during the base treat-
ment 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 “swell-
ing 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 polymeri-
zation inhibitor in the ’004 Patent claims. Organik ar-
gued 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 report-
ed 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 cita-
tions do not disclose a swelling agent as claimed in the
’435 and ’004 patents, and do not affect the Board’s deci-
sions.
                       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 ac-
cordance with law and supported by substantial evidence
in the record, and are affirmed.
                      AFFIRMED
