Case: 22-1514 Document: 34 Page: 1 Filed: 04/14/2023
`
`
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`UPL NA INC.,
`Appellant
`
`v.
`
`TIDE INTERNATIONAL (USA), INC.,
`Appellee
`______________________
`
`2022-1514
`______________________
`
`Appeal from the United States Patent and Trademark
`Office, Patent Trial and Appeal Board in No. IPR2020-
`01113.
`
`______________________
`
`Decided: April 14, 2023
`______________________
`
`MAXIMILIENNE GIANNELLI, Finnegan, Henderson,
`Farabow, Garrett & Dunner, LLP, Reston, VA, argued for
`appellant. Also represented by JOSHUA GOLDBERG, RAJEEV
`GUPTA, PARMANAND K. SHARMA, Washington, DC.
`
` BAILEY K. BENEDICT, Fish & Richardson P.C., Houston,
`TX, argued for appellee. Also represented by THAD
`CHARLES KODISH, Atlanta, GA; LAURA E. POWELL, Wash-
`ington, DC.
` ______________________
`
`

`

`Case: 22-1514 Document: 34 Page: 2 Filed: 04/14/2023
`
`2
`
`UPL NA INC. v. TIDE INTERNATIONAL (USA), INC.
`
`
`Before MOORE, Chief Judge, LOURIE and STOLL, Circuit
`Judges.
`
`LOURIE, Circuit Judge.
`UPL NA Inc. (“UPL”) appeals from a final written de-
`cision of the U.S. Patent and Trademark Office Patent
`Trial and Appeal Board (“the Board”) holding that claims
`1−4 of U.S. Patent 7,473,685 are unpatentable as obvious
`in view of the asserted prior art. Tide Int’l (USA), Inc. v.
`UPL NA Inc., No. IPR2020-01113, 2022 WL 97652
`(P.T.A.B. Jan. 4, 2022) (“Decision”). For the following rea-
`sons, we affirm.
`
`BACKGROUND
`This appeal pertains to an inter partes review (“IPR”)
`
`in which Tide International (USA), Inc. (“Tide”) challenged
`claims 1–4 and 7–12 of the ’685 patent directed to granules
`of an insecticidally active compound known as acephate.
`Representative claim 1 is presented below:
`1. A chemically stable dry flow, low compact,
`dust free soluble phosphoramidothioate gran-
`ule consisting of
`(i) 85-98% w/w an insecticidally active com-
`pound of the following formula:
`
`
`wherein R and R1 individually are alkyl,
`alkynyl or alkenyl group containing up to 6
`carbon atoms, R2 is hydrogen, an alkyl group
`containing 1 to 18 carbon atoms, a cycloalkyl
`group containing 3 to 8 carbon atoms, an
`
`

`

`Case: 22-1514 Document: 34 Page: 3 Filed: 04/14/2023
`
`UPL NA INC. v. TIDE INTERNATIONAL (USA), INC.
`
`3
`
`alkenyl group containing 2 to 18 carbon atoms
`or an alkynyl group containing 3 to 18 carbon
`atoms, R3 is hydrogen or an alkyl group
`containing 1 to 6 carbon atoms, and Y is
`oxygen or sulfur, wherein said insecticidal
`active compound is Acephate;
`(ii) 0.1-5.0% w/w a dispersing agent;
`(iii) 0.1-3% w/w a wetting agent;
`(iv) 0.01-0.08% w/w an antifoaming agent;
`(v) 0.01-1% w/w a stabilizer and
`(vi) fillers to make 100%,
`wherein said granule has a length of 1.5-3.0
`mm and a diameter of 0.5-1.5 mm.
`’685 patent, col. 7 l. 44–col. 8 l. 4 (emphasis added). Inde-
`pendent claim 7 recites the same limitations as claim 1 and
`adds that the granules further consist of “0.1-3% w/w a
`binding agent,” as well as “0.01-10% w/w a disintegrating
`agent.” Id. col. 8 ll. 19–47.
`
`Tide petitioned for IPR of claims 1–4 and 7–12, assert-
`ing three obviousness grounds, each based primarily on
`U.S. Patent 6,387,388 to Misselbrook. J.A. 64. Mis-
`selbrook teaches water-soluble pesticide granules, includ-
`ing a “more preferred” granule made up of a pesticide,
`which may be acephate, a dispersing agent, a wetting
`agent, an antifoaming agent, and a filler. J.A. 816–17.
`Compared to claim 1 of the ’685 patent, that granule lacks
`only a stabilizing agent, though Misselbrook does teach
`more generally that stabilizers may be included. J.A. 817;
`Decision at *5. In its petition, Tide proposed combining
`Misselbrook with references that provided more express
`motivations to include stabilizers in Misselbrook’s granules
`and to support a motivation for, and reasonable expecta-
`tion of success in, producing granules with ingredient con-
`centrations that fell within the claimed ranges.
`
`

`

`Case: 22-1514 Document: 34 Page: 4 Filed: 04/14/2023
`
`4
`
`UPL NA INC. v. TIDE INTERNATIONAL (USA), INC.
`
`The Board concluded that Tide had met its burden to
`establish that claims 1−4 were unpatentable as obvious
`over the asserted prior art. Decision at *8−15. In so doing,
`the Board found unpersuasive UPL’s arguments that the
`prior art’s recitation of a binder, which is not a limitation
`recited in claim 1, led away from a conclusion of obvious-
`ness. Id., *12−13. The Board also concluded that Tide had
`not met its burden to establish that claims 7−12 would
`have been obvious. Id., *16−19.
`UPL appealed the Board’s decision as to claims 1−4.
`We have jurisdiction under 28 U.S.C. § 1295(a)(4)(A) and
`35 U.S.C. § 141(c).
`
`DISCUSSION
`We review the Board’s legal determinations de novo, In
`re Elsner, 381 F.3d 1125, 1127 (Fed. Cir. 2004), and the
`Board’s factual findings for substantial evidence, In re
`Gartside, 203 F.3d 1305, 1316 (Fed. Cir. 2000). A finding
`is supported by substantial evidence if a reasonable mind
`might accept the evidence as adequate to support the find-
`ing. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
`UPL raises two issues on appeal. First, UPL contends
`that the Board erred in construing “fillers” to include fillers
`that were also known to act as binding agents and there-
`fore it erred in concluding that Misselbrook disclosed a
`composition with a filler. UPL also asserts that the Board
`erred in finding a motivation to combine the asserted prior
`art to arrive at the granules of claims 1–4, which lack an
`express “binding agent” limitation. We address each argu-
`ment in turn.
`
`I.
`UPL first contends that the Board’s construction of
`“fillers” to include fillers that were also known to be useful
`binding agents conflicts with black-letter patent law.
`Claim construction is a question of law that we review de
`novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448, 1454
`
`

`

`Case: 22-1514 Document: 34 Page: 5 Filed: 04/14/2023
`
`UPL NA INC. v. TIDE INTERNATIONAL (USA), INC.
`
`5
`
`(Fed. Cir. 1998) (en banc). “It is a ‘bedrock principle’ of pa-
`tent law that ‘the claims of a patent define the invention[,]
`which the patentee is entitled . . . to exclude’” others from
`practicing. Phillips v. AWH Corp., 415 F.3d 1303, 1312
`(Fed. Cir. 2005) (quoting Innova/Pure Water, Inc. v. Safari
`Water Filtration Sys., Inc., 381 F.3d 1111, 1115 (Fed. Cir.
`2004)).
`Although the parties disputed what “fillers” meant,
`neither argued for a formal construction. Decision at *13,
`n.9. UPL asserts, however, that the plain and ordinary
`meaning of “fillers,” as it appears in claim 1, excludes those
`that were known to also act as binding agents. In particu-
`lar, UPL points to the closed “consisting of” transitional
`phrase, the fact that claim 1 does not expressly recite “a
`binding agent,” and the fact that independent claim 7, also
`a consisting-of claim, recites both “a binding agent” and
`“fillers.” The Board, however, held that the plain meaning
`of “fillers” does not exclude those that were known to also
`act as binding agents. We agree. The transitional phrase
`“consisting of” excludes elements not specified in the claim.
`In re Gray, 53 F.2d 520, 521 (CCPA 1931). It does not mean
`that a single, listed ingredient may only serve one function.
`That “a binding agent” is an additional limitation of claim
`7 does not alter this conclusion.
`Moreover, in analyzing whether the prior art taught
`“fillers,” a question of fact that we review for substantial
`evidence, the Board correctly identified that Misselbrook
`teaches “water-soluble fillers” including inorganic water-
`soluble salts that UPL acknowledges were not known to act
`as binding agents. Decision at *13; J.A. 817; Oral Arg. at
`2:47−3:10,
`https://oralarguments.cafc.uscourts.gov/de-
`fault.aspx?fl=22-1514_04042023.mp3. The Board’s deci-
`sion that the prior art taught fillers, as recited in claim 1,
`was thus supported by substantial evidence.
`II.
`UPL next contends that the Board erred in finding a
`
`

`

`Case: 22-1514 Document: 34 Page: 6 Filed: 04/14/2023
`
`6
`
`UPL NA INC. v. TIDE INTERNATIONAL (USA), INC.
`
`motivation to combine, because “no publication of record
`provided any rationale for removing or replacing the bind-
`ing agents of Misselbrook.” Appellant’s Br. at 30–31. But
`Tide’s obviousness challenge was based on Misselbrook’s
`teaching of acephate granules consisting of each of the
`claimed ingredients, including fillers that did not act as
`binding agents. Tide was not required to show that a
`skilled artisan would have been motivated to remove an in-
`gredient not present in Misselbrook’s granules.
`Moreover, the Board found that “Misselbrook’s express
`teaching that ‘any water soluble or water dispersible’ dilu-
`ent can be used as fillers’ rebuts [UPL’s] argument” that a
`skilled artisan “would understand fillers with binding
`properties like lactose, sucrose, and glucose to be a ‘key fea-
`ture’ of those granules.” Decision at *13. UPL has not
`sought to rebut this finding with any assertion of unex-
`pected results or other evidence of criticality. Id., *10. In-
`stead, UPL points to U.S. Patent 5,075,058 to Chan, which
`provides that “a minimum amount of any particular bind-
`ing agent is required in order to meet physical properties
`of attrition resistance, crush strength and bulk density.”
`J.A. 1684. But the ’685 patent claims do not recite these
`physical properties, so the “requirement” disclosed in Chan
`is not necessarily a “requirement” here. At best, UPL
`points to evidence that could be in tension with the Board’s
`finding. However, mere contradictory evidence is not
`enough to overturn a finding of fact. Velander v. Garner,
`348 F.3d 1359, 1378–79 (Fed. Cir. 2003) (“If the evidence
`will support several reasonable but contradictory conclu-
`sions, we will not find the Board’s decision unsupported by
`substantial evidence simply because the Board chose one
`conclusion over another plausible alternative.”). And we
`hold that, despite the Chan teaching, the Board’s finding
`that a skilled artisan would have been motivated to pre-
`pare acephate granules without a binding agent was sup-
`ported by substantial evidence.
`CONCLUSION
`
`

`

`Case: 22-1514 Document: 34 Page: 7 Filed: 04/14/2023
`
`UPL NA INC. v. TIDE INTERNATIONAL (USA), INC.
`
`7
`
`We have considered UPL’s remaining arguments and
`do not find them persuasive. For the foregoing reasons, we
`affirm the Board’s final written decision.
`AFFIRMED
`
`