Basf Corporation v. Ingevity South Carolina, LLC ( 2023 )

Case: 22-1129 Document: 58 Page: 1 Filed: 06/22/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BASF CORPORATION,
Appellant
v.
INGEVITY SOUTH CAROLINA, LLC,
Appellee
______________________
2022-1129
______________________
Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. PGR2020-
00037.
______________________
Decided: June 22, 2023
______________________
PAUL ALESSIO MEZZINA, King & Spalding LLP, Wash-
ington, DC, argued for appellant. Also represented by
JOSHUA NATHANIEL MITCHELL; BRIAN EUTERMOSER,
MIKAELA STONE, Denver, CO.
BRIAN BUROKER, Gibson, Dunn & Crutcher LLP, Wash-
ington, DC, argued for appellee. Also represented by
VLADIMIR J. SEMENDYAI; KATHERINE QUINN DOMINGUEZ,
New York, NY; NATHANIEL RYAN SCHARN, BRIAN YANG, Ir-
vine, CA.
Case: 22-1129 Document: 58 Page: 2 Filed: 06/22/2023
2 BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC
______________________
Before LOURIE, DYK, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
BASF Corporation appeals the Patent Trial and Appeal
Board’s final written decision determining that BASF
failed to show that certain claims of U.S. Patent
No. 10,323,553 were unpatentable as indefinite or obvious.
We affirm in part, vacate in part, and remand. In particu-
lar, we hold that, based on its statement that it need not
consider BASF’s evidence, the Board failed to properly con-
sider the record evidence and adequately explain its ra-
tionale for indefiniteness. We therefore vacate the Board’s
indefiniteness determination and remand for further pro-
ceedings. We otherwise find no reversible error in the
Board’s obviousness determination and affirm the Board’s
decision in that regard.
BACKGROUND
Ingevity South Carolina, LLC owns the ’553 patent,
which relates to systems for reducing fuel vapor emissions
in low purge conditions, e.g., in hybrid vehicles. ’553 pa-
tent col. 1 ll. 22–25, col. 2 ll. 55–65.
Gasoline-powered motor vehicles are equipped with a
vented fuel tank to allow for fuel vapors to expand and con-
tract. As a result, fuel vapors escape to the atmosphere
through the fuel tank’s vent and pollute the air. These fuel
vapor emissions are known as diurnal breathing losses
(DBLs). To reduce fuel vapor emissions, engineers devel-
oped adsorption canister systems. First, honeycomb-
shaped volumes made of adsorbent material, such as acti-
vated carbon, collect fuel vapors while allowing other com-
ponents to pass through. But adsorbent volumes can only
adsorb so much vapor; so, once the adsorbent volumes
reach their limit, non-adsorbed fuel vapors escape into the
atmosphere. To address this issue, the vehicle’s engine—
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BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC 3
while on—draws air back through the canister, and the ad-
sorbed fuel vapors are drawn back into the engine (desorp-
tion) and burned (purge). This canister system, however,
was not as effective for hybrid vehicles because the engines
in hybrid vehicles do not run as frequently as traditional
gasoline-powered vehicles and thus spend less time in this
second, desorption phase. Hence, hybrid vehicles operate
in “low purge” conditions.
The ’553 patent purports to reduce fuel vapor emis-
sions in hybrid vehicles using a canister system with an
initial adsorbent volume and at least one subsequent ad-
sorbent volume with lower adsorptive properties (i.e.,
lesser adsorptive capacity) than the initial adsorption vol-
ume. ’553 patent Abstract. For example, as depicted below
in Figure 4 of the patent, fuel-side adsorbent volume 201
would have a higher adsorption capacity than at least one
of the subsequent adsorbent volumes 202, 203, 204, or
301:
Id. at Fig. 4, col. 4 l. 61–col. 5 l. 3.
Claim 1 is illustrative and describes the characteristics
of the adsorbent volumes:
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4 BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC
1. An evaporative emission control canister system,
including one or more canisters and comprising:
a fuel-side adsorbent volume having an ef-
fective incremental adsorption capacity at
25° C. of greater than 35 grams n-butane/L
between vapor concentration of 5 vol % and
50 vol % n-butane; and
at least one subsequent adsorbent volume
having an effective incremental adsorption
capacity at 25° C. of less than 35 grams n-
butane/L between vapor concentration of 5
vol % and 50 vol % n-butane, an effective
butane working capacity (BWC) of less
than 3 g/dL, and a g-total BWC of ≤6 grams,
wherein the fuel-side adsorbent volume
having an effective incremental adsorption
capacity at 25° C. of greater than 35 grams
n-butane/L between vapor concentration of
5 vol % and 50 vol % n-butane, and the at
least one subsequent adsorbent volume are
located within a single canister, or in sepa-
rate canisters that are connected to permit
sequential contact by fuel vapor, and
wherein the canister system has a two-day
diurnal breathing loss (DBL) of no more
than 20 mg at no more than 100 BV of
purge applied after a 40 g/hr butane load-
ing step.
Id. at col. 23 ll. 18–40.
BASF, a competitor in the design and manufacture of
carbon honeycombs, petitioned for post-grant review of
claims 1–10, 14–28, 32–38, 51, 52, 55–57, 59, 64–72, and
76–82 of the ’553 patent. BASF asserted that the chal-
lenged claims are indefinite and would have been obvious
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BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC 5
over Hiltzik1 in view of Clontz WIPO 2 and Clontz SAE. 3
Hiltzik is Ingevity’s own patent, shares two common inven-
tors with the ’553 patent, and discloses similar subject
matter as the limitations of claim 1, but not the low-purge
performance limitation: “wherein the canister system has
a two-day diurnal breathing loss (DBL) of no more than
20 mg at no more than 100 BV of purge applied after a
40 g/hr butane loading step.” The Board held that BASF
had not shown the challenged claims were unpatentable
under either ground. BASF Corp. v. Ingevity S.C., LLC,
2021 Pat. App. LEXIS 5450, at *47–48 (P.T.A.B. Sept. 9,
2021) (Decision).
BASF appeals. We have jurisdiction under 28 U.S.C.
§ 1295(a)(4)(A).
DISCUSSION
BASF challenges the Board’s indefiniteness and obvi-
ousness determinations. Ingevity challenges BASF’s
standing for this appeal. We address the threshold issue
4
of standing before addressing the Board’s indefiniteness
and obviousness determinations.
I
We begin with standing. Ingevity argues that BASF
lacks standing because BASF failed to provide evidence of
1 U.S. Patent No. RE38,844.
2 WO 2009/061533 A1.
3 Clontz, R., et al., Effects of Low-Purge Vehicle Ap-
plications and Ethanol-Containing Fuels on Evaporative
Emissions Canister Performance, SOC’Y AUTO. ENG’RS
JAPAN (2007).
4 Ingevity filed a motion to terminate BASF’s appeal,
alleging that BASF lacked Article III standing. ECF No. 9.
We denied the motion and directed the parties to address
standing in their merits briefing. ECF No. 20.
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6 BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC
a likely infringing act in the United States or concrete busi-
ness plans for a BASF product that could lead to such an
act. Appellee’s Br. 58. Specifically, Ingevity contends that
BASF does not explain what testing, manufacturing, or
selling of its products has occurred in the United States;
BASF has not explicitly named interested customers; and
BASF’s business plans are speculative in light of the
lengthy validation process required for products on vehicle
platforms in the United States. Id. at 58–62.
BASF contends that it has standing because Ingevity
previously sued it for infringement of Hiltzik—directed to
an invention similar to the ’553 patent—based on BASF’s
use and testing of EvapTrap XC, its previously produced
activated carbon product. Appellant’s Br 62–65; see Com-
plaint, Ingevity Corp. v. BASF Corp., No. 1:18CV01391,
2018 WL 11360396 (D. Del. Sept. 6, 2018). Mr. Joseph
Moonjely, BASF’s in-house counsel, explained that BASF’s
product was developed to be used in U.S. vehicles and to
meet U.S. emissions standards, and BASF can currently
manufacture and provide its product to customers. Appel-
lant’s Br. 62–65 (citing Moonjely Decl. ¶¶ 9, 29–30); Reply
Br. 34–35. Mr. Moonjely also stated that interested cus-
tomers have inquired about the product’s pricing and in-
ventory for use on vehicle platforms in the United States.
Moonjely Decl. ¶ 29.
BASF, as the party invoking federal jurisdiction, bears
the burden of establishing standing. Spokeo, Inc. v. Rob-
ins, 578 U.S. 330, 338 (2016), as revised (May 24, 2016). To
establish Article III standing, BASF must show: (1) it “suf-
fered an injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.” Id. To
demonstrate the requisite injury in an appeal from a final
written decision in a post grant review, “we have concluded
that it is generally sufficient for the appellant to show that
it has engaged in, is engaging in, or will likely engage in
‘activity that would give rise to a possible infringement
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BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC 7
suit.’” Grit Energy Sols., LLC v. Oren Techs., LLC,
957 F.3d 1309, 1319 (Fed. Cir. 2020) (quoting Consumer
Watchdog v. Wis. Alumni Rsch. Found., 753 F.3d 1258,
1262 (Fed. Cir. 2014)). BASF “need not face ‘a specific
threat of infringement litigation by the patentee’ to estab-
lish jurisdiction,” but rather need only “generally show a
controversy ‘of sufficient immediacy and reality’ to warrant
the requested judicial relief.” E.I. DuPont de Nemours
& Co. v. Synvina C.V., 904 F.3d 996, 1004 (Fed. Cir. 2018)
(quoting ABB Inc. v. Cooper Indus., LLC, 635 F.3d 1345,
1348 (Fed. Cir. 2011)).
We are satisfied that BASF has met its burden of es-
tablishing standing. “[F]or purposes of assessing stand-
ing,” we accept Mr. Moonjely’s declaration “as true . . .
material representations of fact.” Amerigen Pharms. Ltd.
v. UCB Pharma GmBH, 913 F.3d 1076, 1083 (Fed. Cir.
2019). We have previously found a substantial risk of fu-
ture infringement where the appellant “operates a plant
[that is] capable of infringing the . . . patent” at issue.
DuPont, 904 F.3d at 1004–05. We have also held that prior
litigation involving, for example, the patent-in-suit or re-
lated patents “presents an even stronger basis for stand-
ing.” Google LLC v. Conversant Wireless Licensing
S.A.R.L., 753 F. App’x 890, 894 (Fed. Cir. 2018) (non-prec-
edential) (finding appellants’ risk of infringement concrete
and substantial where appellant was previously accused of
patent infringement by the appellee); see also Adidas AG
v. Nike, Inc., 963 F.3d 1355, 1357 (Fed. Cir. 2020) (finding
the appellant had standing where the appellee asserted the
patent-at-issue against a third-party product similar to
that of the appellant’s). Here, BASF has demonstrated
that it plans to sell its product in the United States and
was previously sued by Ingevity. Because BASF “has con-
crete plans for future activity that create[] a substantial
risk of future infringement or likely cause the patentee to
assert a claim of infringement,” JTEKT Corp. v. GKN Auto.
Ltd., 898 F.3d 1217, 1221 (Fed. Cir. 2018), we conclude that
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8 BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC
BASF has satisfied the requirements for Article III stand-
ing.
II
We thus proceed to the merits of BASF’s appeal. We
review the Board’s ultimate conclusions of indefiniteness
and obviousness de novo and its underlying fact determi-
nations for substantial evidence. Guangdong Alison Hi-
Tech Co. v. Int’l Trade Comm’n, 936 F.3d 1353, 1359
(Fed. Cir. 2019); TQ Delta, LLC v. CISCO Sys., Inc., 942
F.3d 1352, 1357 (Fed. Cir. 2019). The substantial evidence
standard asks whether, after examining the record evi-
dence, “a reasonable fact finder could arrive at the agency’s
decision.” TQ Delta, 942 F.3d at 1358.
BASF challenges the Board’s findings that (1) two
methods of measuring adsorption capacity—the gravimet-
ric and volumetric measurement methods—are compara-
ble; and (2) a skilled artisan would not have been
motivated to dilute Hiltzik’s honeycomb to achieve lower
emissions in view of Clontz SAE. We address each issue in
turn.
A
BASF challenges the Board’s rejection of its indefinite-
ness ground as being arbitrary and capricious and not sup-
ported by substantial evidence. Appellant’s Br. 30–43.
The challenged claims recite “an effective incremental ad-
sorption capacity.” For example, Claim 1 requires “a fuel-
side adsorbent volume having an effective incremental ad-
sorption capacity [(IAC)] . . . of greater than 35 grams n-
butane/L” and “at least one subsequent adsorbent volume
having an effective incremental adsorption capacity . . . of
less than 35 grams n-butane/L.” ’553 patent col. 9 ll. 6–25,
col. 23 ll. 20–26 (emphases added). The ’553 patent dis-
closes two different methods of measuring effective IAC: a
gravimetric method and a volumetric method. Id. at col. 13
l. 60–col. 14 l. 54.
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BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC 9
BASF argued before the Board that the challenged
claims are indefinite because the patent specification fails
to teach with reasonable certainty how the effective IAC
should be measured, and the specification articulates two
measurement methods that give varying results. Appel-
lant’s Br. 30–31 (“[W]hen ‘different approaches to measure-
ment are involved,’ the patent ‘must disclose a single
known approach or establish that, where multiple known
approaches exist, a [skilled artisan] would know which ap-
proach to select.’” (quoting Dow Chem. Co. v. Nova Chems.
Corp. (Can.), 803 F.3d 620, 630 (Fed. Cir. 2015)). In sup-
port, BASF offered a memorandum from its expert
Dr. Guo, as well as third-party testing, to show alleged sig-
nificant differences between results determined using the
gravimetric and volumetric methods. See Decision, 2021
Pat. App. LEXIS 5450, at *17; J.A. 2055; J.A. 3092.
In response, Ingevity offered contrary evidence, such as
peer-reviewed articles and expert testimony, to show that
the two measurement methods “were known to measure
equivalent adsorption capacities and were viewed as com-
patible with each other.” Decision, 2021 Pat. App. LEXIS
5450, at *17. This evidence showed, Ingevity argued, that
the large differences found in BASF’s testing resulted from
“instrument inaccuracies and experimental error.” Id.The Board ultimately found that BASF had not estab-
lished indefiniteness of the claims by a preponderance of
the evidence. Id. at *18. On appeal, BASF argues that the
Board credited Ingevity’s evidence and failed to consider its
contrary evidence of indefiniteness, including its third-
party testing evidence. Appellant’s Br. 37–40. The Board’s
opinion states in relevant part:
We find that the evidence submitted by Patent
Owner as to the gravimetric and volumetric meas-
urement techniques demonstrates that they were
well established in the art as comparable methods
for measuring adsorption capacity, and
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10 BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC
accordingly, not a basis for determining claim in-
definiteness.
Because this determination is dispositive as to Pe-
titioner’s indefiniteness challenge, we need not ad-
dress Petitioner’s allegations as to the measurement
differences . . . .
Decision, 2021 Pat. App. LEXIS 5450, at *19 (emphasis
added; citations omitted).
The Board’s statement suggests that, because it found
Ingevity’s evidence on indefiniteness convincing, the Board
did not consider BASF’s evidence on the issue.
Substantial evidence review “asks whether a reasona-
ble fact finder could have arrived at the agency’s decision,
and involves examination of the record as a whole, taking
into account evidence that both justifies and detracts from
an agency’s decision.” TQ Delta, 942 F.3d at 1358 (quota-
tions omitted). Although our review under the Administra-
tive Procedure Act (APA) is deferential, id., the Board must
“explain[] its decisions with sufficient precision, including
the underlying factfindings and [its] rationale,” Packard
Press, Inc. v. Hewlett-Packard Co., 227 F.3d 1352, 1357
(Fed. Cir. 2000). Indeed, “the Board may not short-cut its
consideration of the factual record before it.” Princeton
Vanguard, LLC v. Frito-Lay N. Am., Inc., 786 F.3d 960, 970
(Fed. Cir. 2015); see id. (“Though the Board is not required
to discuss every piece of evidence, it cannot . . . disregard
[the appellant’s] evidence without explanation.”).
At oral argument, Ingevity asserted that the Board did
weigh BASF’s evidence against Ingevity’s. For example,
Ingevity suggested the Board noted that Dr. Zielinski, who
oversaw BASF’s third-party testing, also wrote one of the
peer-reviewed publications submitted by Ingevity. See
Oral Arg. at 16:12–17:13, https://oralargu-
ments.cafc.uscourts.gov/default.aspx?fl=22-1129_0503202
3.mp3. In Ingevity’s view, the Board made a credibility
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BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC 11
finding and determined that Dr. Zielinski’s peer-reviewed
article was more reliable than the third-party testing, in
light of the other evidence in the record. Id. In other
words, Ingevity argued that the Board considered the evi-
dence submitted by BASF and Ingevity, and ultimately de-
termined that Ingevity’s evidence established that the
volumetric and gravimetric techniques are comparable
methods in the art. Id. at 16:12–17:43; see id. at 18:12–
18:26 (“All you have to do is find a path to their outcome,
which is clear—[the Board] found the peer-reviewed arti-
cles . . . and unbiased materials to be more compelling.”).
But the Board did not explain whether it found Ingevity’s
evidence more credible; nor did it explain whether it found
BASF’s testing unreliable and therefore did not give that
evidence any weight. See id. at 17:43–18:16. While we may
well have affirmed the Board had it articulated any of these
purported reasons for its conclusion, we cannot meaning-
fully review the Board’s opinion to determine whether its
underlying factual finding is supported by substantial evi-
dence because we cannot discern the basis for the Board’s
finding—other than its very clear statement that it need
not consider BASF’s evidence. Such a statement, without
further elaboration, runs afoul of the APA’s requirement to
consider all the evidence and thus the Board’s analysis is
improper.
We therefore vacate the Board’s decision regarding
BASF’s indefiniteness challenge and remand for the Board
to consider all the proffered evidence of record and make
the relevant factual findings and legal conclusion regard-
ing indefiniteness.
B
We now turn to BASF’s challenge to the Board’s finding
on motivation to combine the asserted prior art. Appel-
lant’s Br. 43–61. Claim 1 is illustrative and requires “at
least one subsequent adsorbent volume having . . . an ef-
fective butane working capacity (BWC) of less than 3 g/dL,
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12 BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC
and a g-total BWC of ≤6 grams” and “the canister system
ha[ving] a two-day diurnal breathing loss (DBL) of no more
than 20 mg at no more than 100 BV of purge applied after
a 40 g/hr butane loading step.” See ’553 patent col. 23
ll. 24–40. In its petition, BASF asserted that Hiltzik,
Clontz WIPO, and Clontz SAE taught this limitation—spe-
cifically, that a skilled artisan would have been motivated
to dilute the honeycomb in Hiltzik’s Example 2 in view of
the teachings of the two Clontz references that such a dilu-
tion would be preferable in a low purge environment.
J.A. 214–16; see also Decision, 2021 Pat. App. LEXIS 5450,
at *28–29.
The Board found that BASF had not established by a
preponderance of the evidence that a skilled artisan would
have been motivated to dilute Hiltzik’s honeycomb adsor-
bent “to meet emissions standards at low-purge conditions
in view of Clontz SAE and Clontz WIPO.” 5 Id. at *32–36.
The Board was persuaded by Ingevity’s argument that
Clontz SAE expressly teaches that “higher working capac-
ity honeycombs ‘facilitate achievement of target emissions
5 Although both parties assert that the Board found
that Clontz SAE teaches away from the claimed invention,
we understand the Board’s opinion as holding that a person
of ordinary skill in the art would not have been motivated
to modify Hiltzik in view of the Clontz references because
Clontz SAE teaches an alternative solution to the same
low-purge problem present in the ’553 patent. See, e.g., Ap-
pellant’s Br. 27–28; Appellee’s Br. 2. Indeed, the Board’s
decision does not use the legal term “teaching away,” nor
does it analyze the stringent criteria required for establish-
ing teaching away. See Rembrandt Wireless Techs., LP
v. Samsung Elecs. Co., 853 F.3d 1370, 1379 (Fed. Cir. 2017)
(“Whether a reference teaches away is doctrinally distinct
from whether there is no motivation to combine prior art
references.”).
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BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC 13
levels under the reduced purge conditions.’” Id. at *32–33
(quoting J.A. 2272).
On appeal, BASF challenges the Board’s finding that a
skilled artisan would not have been motivated to combine
Hiltzik with the Clontz references. Specifically, BASF ar-
gues that contrary to the Board’s finding, Clontz WIPO
suggests diluting Hiltzik’s honeycomb with its teaching us-
ing adsorbents with flatter isotherms, including voids in
the adsorbents, and reducing the honeycomb’s resistance.
Appellant’s Br. 43–60; see also id. at 44–51.
We hold that the Board’s finding—that a skilled arti-
san would not have been motivated to make the proposed
combination of Hiltzik and the Clontz references—is sup-
ported by substantial evidence. Clontz SAE discloses using
“higher capacity honeycombs” than the honeycombs in
Hiltzik to achieve “target emissions levels under the re-
duced purge conditions.” J.A. 2272. Clontz SAE teaches
that canister emissions were generally better in large vol-
umes, as shown by a larger honeycomb exhibiting lower
emissions levels than the smaller honeycomb at purge vol-
umes less than 200 bed volumes. J.A. 2268–69. A reason-
able factfinder could therefore find that Clontz SAE would
have motivated a skilled artisan to use a higher BWC in
subsequent adsorbent volumes.
While BASF introduced evidence arguably demon-
strating a motivation to combine—e.g., BASF’s expert opin-
ing that the skilled artisan would have been motivated
because both Hiltzik and Clontz WIPO teach diluting the
honeycomb (either by flattening its isotherm or reducing
its resistance) to achieve better emissions and reduce its
IAC and BWC—the Board considered this evidence. In-
stead, the Board found that Clontz SAE never mentions di-
lution as a means to address the problem with low-purge
conditions. See Decision, 2021 Pat. App. LEXIS 5450,
at *33–34. Given the varied record evidence—with some
supporting BASF’s view and some supporting Ingevity’s
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14 BASF CORPORATION v. INGEVITY SOUTH CAROLINA, LLC
view—the Board was entitled to reasonably reach its fac-
tual finding. “This court does not reweigh evidence on ap-
peal, but rather determines whether substantial evidence
supports the Board’s fact findings.” In re NTP, Inc., 654
F.3d 1279, 1292 (Fed. Cir. 2011). Therefore, we conclude
that substantial evidence supports a finding of no motiva-
tion to combine.
CONCLUSION
We have considered BASF’s remaining arguments and
find them unpersuasive. For the foregoing reasons, BASF
has standing to appeal the Board’s final written decision.
Because the Board did not explain why it disregarded
BASF’s proffered evidence regarding the measurement
techniques, we vacate the Board’s indefiniteness determi-
nation and remand for further proceedings consistent with
this opinion. Because substantial evidence supports the
Board’s finding no motivation to combine, we affirm the
Board’s obviousness determination.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.