Federal Circuit disposition — 18-2189

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

IN RE: THERMOLIFE INTERNATIONAL LLC,
Appellant
______________________

2018-2189
______________________

Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in Nos. 90/011,394,
90/011,869.
______________________

Decided: January 10, 2020
______________________

R
OBERT J. GAJARSA, Latham & Watkins LLP, Washing-
ton, DC, argued for appellant. Also represented by
GABRIEL BELL.

FRANCES LYNCH, Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, argued for
appellee Andrei Iancu. Also represented by THOMAS W.
KRAUSE, JOSEPH MATAL, MAUREEN DONOVAN QUELER.
______________________

Before P
ROST, Chief Judge, TARANTO and STOLL,
Circuit Judges.
PROST, Chief Judge.

IN RE: THERMOLIFE INTERNATIONAL LLC
2
ThermoLife International LLC appeals a decision from
the Patent Trial and Appeal Board (“ Board”) from two
merged ex parte reexamination proceedings of U.S. Patent
No. 7,777,074 (“the ’074 patent”). The Board found that
claim 6, which was added during reexamination, is antici-
pated under 35 U.S.C. § 102(b).
1
For the reasons below, we
affirm.
I

The ’074 patent claims priority to an application filed
in 2007 and is directed to various amino acid compounds.
As relevant to this appeal, the ’074 patent discloses ni-
trates of amino acid compounds. The specification teaches
that “Nitrates are a class of compounds that are salts of
Nitric Acid (HNO
3
) and at least comprise one Nitrogen
atom and three Oxygen atoms (NO
3
).” ’074 patent col. 6 ll.
45–47.
Claim 6, which was added during ex parte reexamina-
tion of the ’074 patent and is the only claim on appeal, is
directed in part to nitrates of creatine. Claim 6 recites:
6. A Compound having the structure of:

wherein Y is selected from the group consisting of
a Nitrate and a Nitrite.

1
Because the claim at issue in this case have effec-
tive filing dates prior to March 16, 2013, we apply pre-AIA
§ 102(b).

IN RE: THERMOLIFE INTERNATIONAL LLC

3
J.A. 44.
Creatine is a nonessential amino acid or amino acid de-
rivative that is naturally occurring in the human body and
is commonly used in nutritional supplements. ’074 patent
col. 4 ll. 11–19. At the time of filing, it was known that
creatine is capable of forming a number of salts by reaction
with a number of acids. Claim 6 recites one such salt, cre-
atine nitrate. See ’074 patent col. 6 ll. 45–47.
The ’074 patent teaches that creatine nitrate may be
prepared by “combining nitric acid and Creatine, mixing
with water, and leaving to crystallize.” ’074 patent col. 9
ll. 19–21. The specification does not state the chemical for-
mula or the structural formula for creatine nitrate. The
specification does, however, identify the structural formula
of creatine, which reveals that the chemical formula of cre-
atine is C
4
H
9
N
3
O
2
. See ’074 patent col. 4 ll. 1–9; see also id.
at J.A. 44 (claim 6).
B
The ’074 patent issued in 2010 with two claims. Two
separate requests for ex parte reexamination were subse-
quently filed. These requests were merged into a single ex
parte reexamination proceeding, during which the original
claims of the ’074 patent were cancelled and other claims,
including claim 6, were added. Though all other newly
added claims were allowed, claim 6 w as finally rejected as
anticipated under 35 U.S.C. § 102(b) over a prior art publi-
cation Barger.
Barger is a compendium of bases, and in relevant part,
describes creatine and its structure. See J.A. 3809–815,
5063. Barger specifically teaches “[c]ompounds of crea-
tine,” including “[t]he nitrate, C
4
H
9
O
2
N
3
· HNO
3
,” and

IN RE: THERMOLIFE INTERNATIONAL LLC
4
further describes creatine nitrate’s properties.
2
J.A. 3812.
Barger does not describe the structure of creatine nitrate
or a method of making it.
ThermoLife appealed the examiner’s rejection of
claim 6 to the Board. See In re ThermoLife Int’l LLC,
No. 2015-006203, 2016 WL 406381 (P.T.A.B. Feb. 1, 2016)
(“Board Decision I”). ThermoLife argued that Barger is
ambiguous and also that Barger is not enabling because it
does not teach a method of preparing creatine nitrate. The
Board disagreed, but nonetheless identified additional evi-
dence to demonstrate that Barger is enabling. Specifically,
the Board cited the prior art publication Dessaignes,
3

which predates Barger, for its disclosure of a method for
preparing creatine nitrate. The Board additionally cited
another prior art publication Gmelin
4
for a similar disclo-
sure.
Dessaignes teaches methods of preparing the “nitrate
of creatine,” identifying the salt with the chemical formula
“C
8
H
18
N
6
O
4
, N
2
H
2
O
6
.” See J.A. 4150. In one of these meth-
ods, Dessaignes states that creatine nitrate may be pro-
duced by “dissolving 1.057 gr. of crystallized creatine in
nitric acid containing 0.447 gr. of N
2
H
2
O
6
, and evaporating

2
Barger, G., THE SIMPLER NATURAL BASES,
R.H.A. Plimmer & F.G. Hopkins (eds.), “Monographs on
Biochemistry,” Longmans, Green & Co., London (1914).
3
M. Dessaignes, “Scientific and Medicinal Chemis-
try: Examination of some Products of the Transformation
of Creatine,” 12 (279), THE CHEMICAL GAZETTE OR
JOURNAL OF PRACTICAL CHEMISTRY, 201–04 (June
1, 1854).
4
Leopold Gmelin, “Creatine,” HANDBOOK OF
CHEMISTRY, Vol. 10: Organic Compounds Containing
Eight and Ten Atoms of Carbon, pp. 249–55, Henry Watts,
trs., printed for the Cavendish Society, London (1856).

IN RE: THERMOLIFE INTERNATIONAL LLC

5
at 86° F.” J.A. 4150. Dessaignes does not teach the struc-
tural formula of creatine nitrate.
The Board determined that “the salt described in
Barger was conventionally made by dissolving crystallized
creatine in the requisite quantity of nitric acid and allow-
ing to crystallize by evaporation of the water, as evidenced
by Dessaignes and Gmelin, identically to that described in
the ’074 patent.” Board Decision I, at *6. The Board there-
fore concluded that Barger’s teaching of creatine nitrate
did not require a citation to, or a description of, how to
make the salt. Id. (citing Motorola, Inc. v. Interdigital
Tech. Corp., 121 F.3d 1461, 1472 (Fed. Cir. 1997)). Because
the Board had relied on new evidence to support its affir-
mance, it entered new grounds of rejection for claim 6:
claim 6 is rejected under 35 U.S.C. § 102(b) as anticipated
by: (a) Barger, as evidenced by Dessaignes and Gmelin,
and (b) Dessaignes or Gmelin.
5

ThermoLife elected to reopen prosecution as to the new
grounds and submitted additional declarations and argu-
ment purporting to show that all three references, Barger,
Dessiagnes, and Gmelin, are ambiguous and not enabling.
The examiner, however, disagreed and finally rejected
claim 6 on all grounds. ThermoLife again appealed to the
Board.
In its second decision on appeal, the Board stated that
the issue was whether “based on a preponderance of the
evidence, has [ThermoLife] shown that the Examiner erred
in maintaining the new grounds of rejection in light of

5
In Board Decision I, the Board expressly adopted
all findings of the examiner in the final rejection and the
examiner’s answer in that appeal. Board Decision I, at 4.
The Board’s decision has not been vacated or otherwise re-
versed. The analysis and conclusions therein remain part
of the prosecution history.

IN RE: THERMOLIFE INTERNATIONAL LLC
6
further arguments and evidence of record . . . ?” See In re
ThermoLife Int’l LLC, No. 2018-001029, 2018 WL 2335128,
*3 (P.T.A.B. May 21, 2018) (“Board Decision II”). The
Board answered in the negative, again rejecting Ther-
moLife’s arguments that the references are ambiguous and
not enabling. First, as to ambiguity, the Board found that
each of the references, including Barger and Dessaignes,
unambiguously identify creatine nitrate and disclose its
chemical formula and other physical properties. The Board
expressly refuted ThermoLife’s argument that Dessaignes
teaches the incorrect chemical formula for creatine nitrate
by doubling the number of atoms of each element in the
formula. The Board stated that Dessaignes’s formula “con-
verts” to the correct formula. Id. at *8. The Board also
stated that “[w]ithout sufficient evidence to support a find-
ing of clear error, we are unwilling to find the express
teaching of a nitrate of creatine in four separate references
to be ambiguous.” Id.
The Board also expressly rejected ThermoLife’s argu-
ment that Dessaignes is ambiguous due to potential inac-
curacies in its disclosure or because of differences between
the method of preparing creating nitrate taught in Des-
saignes and the method taught by the ’074 patent. The
Board found that the method in Dessaignes is “substan-
tially identical to that described in the ’074 patent.” Id.
at *10.
Next, the Board found that ThermoLife had not met its
burden to show that the asserted prior art is not enabling.
See id. at *10–17 (citing In re Antor Media Corp., 689 F.3d
1282, 1288 (Fed. Cir. 2012)). Specifically, the Board found
that the record demonstrated that a skilled artisan as of
the ’074 patent’s application in 2007 could have made cre-
atine nitrate from Dessaignes’s teaching without undue ex-
perimentation. The Board also rejected ThermoLife’s
argument that Dessaignes did not, in fact, make creatine
nitrate, because as an initial matter, actual manufacture is
not required to satisfy enablement. The Board further

IN RE: THERMOLIFE INTERNATIONAL LLC

7
rejected ThermoLife’s argument based on its finding that
ThermoLife has not “conclusively shown” that Dessaignes’s
mixing process does not produce creatine nitrate, or that
the findings of Dessaignes are “necessarily inaccurate.” Id.
at *16, *17.
ThermoLife appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(4)(A).
II
Anticipation is a question of fact that considers
whether a single reference describes the claimed invention
“with sufficient precision and detail to establish that the
subject matter existed in the prior art.” Wasica Finance
GmbH v. Continental Automotive Sys., Inc., 853 F.3d 1272,
1284 (Fed. Cir. 2017) (quoting Verve, LLC v. Crane Cams,
Inc., 311 F.3d 1116, 1120 (Fed. Cir. 2002)); see also In re
Hyatt, 211 F.3d 1367, 1371 (Fed. Cir. 2000). A s a matter of
law, an ambiguous reference cannot anticipate a claim.
Wasica Finance, 853 F.3d at 1284.
Once an examiner has shown a prima facie case of an-
ticipation, because “a prior art printed publication cited by
an examiner is presumptively enabling,” the burden of
proving that the prior art is not enabling shifts to the pa-
tent owner. Antor Media, 689 F.3d at 1288. Whether a
prior art reference is enabled is a question of law based on
underlying factual findings. In re Morsa, 803 F.3d 1374,
1376 (Fed. Cir. 2015). We review the Board’s legal conclu-
sions de novo and the Board’s factual findings for substan-
tial evidence. Morsa, 803 F.3d at 1376.
On appeal, ThermoLife argues that the cited prior art
does not anticipate claim 6 of the ’074 patent because the
prior art does not expressly and unambiguously disclose
the claimed invention. ThermoLife also argues that the
cited prior art does not enable the claimed invention. We
address each argument in turn.

IN RE: THERMOLIFE INTERNATIONAL LLC
8
A
ThermoLife argues that the prior art does not antici-
pate claim 6 of the ’074 patent because each reference fails
to expressly and unambiguously disclose the claimed in-
vention. According to ThermoLife, the references do not
teach anything relevant to the claimed creatine nitrate
compound because they are designed to produce com-
pounds with different formulas. We disagree. Substantial
evidence supports the Board’s determination that claim 6
is anticipated by at least Barger as evidenced by Des-
saignes and by Dessaignes alone. Because we affirm with
respect to these grounds, we do not reach ThermoLife’s re-
maining arguments related to Gmelin.
Barger teaches the “nitrate” of creatine recited by
claim 6. Barger further correctly reports the chemical for-
mula of creatine nitrate (C
4
H
9
N
3
O
2
·

HNO
3
), which con-
sistent with claim 6, identifies the chemical formula for
creatine nitrate as creatine with nitric acid. Compare
J.A. 3812 (Barger) with ’074 patent col. 4 ll. 1–10, col. 6 ll.
45–47 and J.A. 44 (claim 6). Further still, Barger describes
the properties of creatine nitrate, and Barger discloses the
correct chemical formula and structural formula for crea-
tine, one of creatine nitrate’s starting materials.
6

6
To the extent that ThermoLife argues that the
Board’s anticipation decision should be reversed because
the Board copied the incorrect chemical structure of crea-
tine from Barger into the body of the decision, we are not
persuaded that this constitutes reversible error. The
Board’s statement that “Barger provides a chemical struc-
ture for creatine” is correct. Board Decision II, at *5; s ee
also J.A. 5063. Additionally, throughout reexamination,
the correct creatine structure from Barger was repeatedly
cited by the examiner and those citations were adopted by
the Board. See e.g., Board Decision I, at *2. Moreover, as

IN RE: THERMOLIFE INTERNATIONAL LLC

9
Though ThermoLife acknowledges that Barger’s ex-
press disclosure of creatine nitrate “appears like it could
match the claimed compound,” ThermoLife nonetheless ar-
gues that the disclosed chemical formula “could just as eas-
ily refer to creatinine nitrate monohydrate or any other
number of compounds.” See Appellant’s Br. 34; see also id.
at 3. As the Board found, ThermoLife’s argument is under-
mined by the clear description in Barger, which specifically
identifies the disclosed chemical formula as being that of
creatine nitrate and not another compound. Board Deci-
sion II, at *7. Substantial evidence supports the Board’s
finding that Barger unambiguously discloses creatine ni-
trate as recited by claim 6.
Like Barger, Dessaignes expressly teaches the “nitrate
of creatine,” which is the combination of creatine and nitric
acid. J.A. 4150. Dessaignes identifies creatine nitrate with
the chemical formula “C
8
H
18
N
6
O
4
, N
2
H
2
O
6
,” and Des-
saignes specifically teaches a method for preparing crea-
tine nitrate by mixing creatine and nitric acid. Id.
ThermoLife, however, argues that the Board erred in
finding that Dessaignes’s reported chemical formula,
which doubles the number of each of the atoms, “converts”
to the correct chemical formula. Board Decision II, at *8.
According to ThermoLife, such conversion has “no place in
chemistry.” Appellant’s Br. 50–51. But ThermoLife’s ar-
gument lacks evidentiary support. See id. In contrast, the
Board’s conclusion is supported by testimony offered by
ThermoLife’s own expert, Dr. Richard Chamberlin, with re-
spect to another statement in Dessaignes. He stated that
“[o]ne would assume that the ‘N
2
H
2
O
6
’ would mean two
equivalents of nitric acid.” See J.A. 3927, ¶ 23. Indeed, the

Barger has otherwise clearly identified creatine nitrate, it
is not required to disclose its structure or the structure of
its starting material in order to anticipate. See In re Bara-
nauckas, 228 F.2d 413, 415 (C.C.P.A. 1955).

IN RE: THERMOLIFE INTERNATIONAL LLC
10
chemical formula for creatine nitrate in Dessaignes is con-
sistent with the correct ratio of one mole of creatine to one
mole of nitric acid. See J.A. 4045. Substantial evidence
supports the Board’s finding that Dessaignes unambigu-
ously discloses the correct chemical formula for creatine ni-
trate.
ThermoLife’s remaining arguments that the Board
erred in finding the prior art unambiguous are similarly
unpersuasive. ThermoLife, for example, argues that while
the prior art may disclose creatine nitrate, there “is no way
to know whether the ‘creatine’ that the references refer to
creatine as it is known today.” Appellant’s Br. 37. Ther-
moLife supports this argument with expert testimony by
Dr. Trevor H. Levere, a chemistry historian, which the
Board discounted because Dr. Levere is not capable of de-
termining whether a chemist in 2007 would have been able
to perform Dessaignes’s mixing method without undue ex-
perimentation. Board Decision II, at *17. Citing Dr.
Chamberlin, the Board also found that as of the time of the
’074 patent’s alleged invention in 2007, the art of salt for-
mation was well-known, and that mixing crystallized crea-
tine and nitric acid as described in Dessaignes would have
required no more than routine experimentation. Id. We
credit the Board’s fact finding and determine that it is sup-
ported by substantial evidence.
ThermoLife also briefly argues that the Board legally
erred in determining that the prior art is not ambiguous
because in its view, the Board required ThermoLife to
prove that the prior art was ambiguous by clear error, ra-
ther than by preponderant evidence. ThermoLife’s only ev-
idence that the Board applied an incorrect standard is the
Board’s lone statement that “[w]ithout sufficient evidence
to support a finding of clear error, we are unwilling to find
the express teaching of a nitrate of creatine in four sepa-
rate references to be ambiguous.” Id. at *8 (emphasis
added). Contrary to ThermoLife’s suggestion, this state-
ment does not apply to the Board’s ultimate finding

IN RE: THERMOLIFE INTERNATIONAL LLC

11
regarding whether the cited prior art unambiguously an-
ticipates the prior art. Instead, the Board’s statement is
made in response to ThermoLife’s specific argument that
the prior art is ambiguous because it discloses incorrect
chemical formulas, or otherwise contains errors, rendering
the prior art ambiguous—the same argument considered
above. See id.
The Board’s decision shows that it correctly considered
the ultimate question of whether the prior art unambigu-
ously teaches the claimed invention. The Board framed the
issues on appeal by asking whether the examiner’s antici-
pation rejections should be maintained “based on a prepon-
derance of the evidence.” Id. at *3. Then the Board
correctly applied the law. The Board explained that it was
“unwilling to find the express teaching of a nitrate of crea-
tine in four separate references to be ambiguous,” because
ThermoLife attempted to “undermine an express teaching
[of the prior art] with no more than conjecture.” Id. at *8.
We agree.
The evidence demonstrates that the Board correctly
found that both Barger and Dessaignes expressly disclose
creatine nitrate as recited in claim 6, and also that neither
Barger nor Dessaignes teaches incorrect formulas for crea-
tine nitrate. These are factual findings that we review for
substantial evidence. See Novo Nordisk Pharm., Inc. v. Bio-
Tech. Gen. Corp., 424 F.3d 1347, 1355 (Fed. Cir. 2005)
(“What a prior art reference discloses in an anticipation
analysis is a factual determination . . . .”). Because Barger
and Dessaignes do not include the errors alleged by Ther-
moLife, ThermoLife has not shown that the prior art is am-
biguous by preponderant evidence.
On the facts of this case, therefore, we do not think that
the Board’s errant statement constitutes reversible error.
We determine that to the extent that the Board incorrectly
stated the preponderant evidence standard in a single
statement, such error was harmless. In re Watts, 354 F.3d

IN RE: THERMOLIFE INTERNATIONAL LLC
12
1362, 1369 (Fed. Cir. 2004) (“We have previously made
clear that the harmless error rule applies to appeals from
the Board just as it does in cases originating from district
courts.”).
Accordingly, we affirm the Board’s decision that the
prior art discloses a prima facie case of anticipation.
B
Because we determine that the Board correctly found a
prima facie case of anticipation, we now turn to Ther-
moLife’s argument that the prior art is not enabling. More
particularly, ThermoLife argues that the prior art lacks en-
ablement because in its view, the prior art does not disclose
a method of preparing creatine nitrate. See Antor Media,
689 F.3d at 1288.
With respect to Barger, in its first appeal to the Board
during reexamination, ThermoLife argued that the refer-
ence was not enabling for failure to describe a method of
making creatine nitrate. In response, the Board disagreed
that Barger lacked enablement but also cited Dessaignes,
among other references, as evidence that “Barger’s teach-
ing of creatine nitrate is the recitation of a material that
was so conventional to organic chemists at the time of the
invention that there was not need either for citation or for
a description of how to make the salt.” Board Decision I,
at *6 (citing Motorola, 121 F.3d at 1472).
On appeal before this court, ThermoLife argues that
Dessaignes does not cure the deficiency of Barger because
it also is not enabling. According to ThermoLife, the prep-
aration of a salt like creatine nitrate is complex and the
method taught by Dessaignes would not teach a person of
ordinary skill in 2007 to make creatine nitrate. Ther-
moLife also argues that Dessaignes does not teach the
same method as the ’074 patent, but instead discloses a dif-
ferent step for adding water. ThermoLife further argues
that the method in Dessaignes may not make creatine

IN RE: THERMOLIFE INTERNATIONAL LLC

13
nitrate at all, and that it is not possible to determine
whether creatine nitrate was actually made based on the
disclosures in Dessaignes.
ThermoLife made each of these arguments in its sec-
ond appeal to the Board during reexamination. The Board
correctly rejected each. See Board Decision II, at *10–17.
For example, the Board found that preparing creatine ni-
trate from Dessaignes would not have been beyond the skill
of the ordinary artisan in 2007 because the specific disclo-
sures including the amounts of creatine and nitric acid, as
well as evaporation temperature, would have provided suf-
ficient information to such an artisan to prepare creatine
nitrate. See id., at *13. Indeed, as the Board found, the
directions in the prior art for preparing creatine nitrate are
“substantially identical” to the method taught by the
’074 patent. See id. at *12; compare ’074 patent col. 9
ll. 19–21 (preparing creatine nitrate by “combining nitric
acid and Creatine, mixing with water, and leaving to crys-
tallize”) with J.A. 4150 (Dessaignes) (preparing creatine ni-
trate by “dissolving 1.057 gr. of crystallized creatine in
nitric acid containing 0.447 gr. of N
2
H
2
O
6
, and evaporating
at 86° F”). The amount of direction included in the ’074 pa-
tent’s specification is evidence of the knowledge in the art,
and therefore, is also evidence of what amount of disclosure
is required from the prior art to be enabling. See Morsa,
803 F.3d at 1378 (“There is a crucial difference between us-
ing the patent’s specification for filling in gaps in the prior
art, and using it to determine the knowledge of a person of
ordinary skill in the art.”); see also Titanium Metals Corp.
of Am. v. Banner, 778 F.2d 775, 781 (1985) (noting that ap-
pellee’s “own patent application does not undertake to tell
anyone how to make the alloy it describes and seeks to pa-
tent. It assumes that those skilled in the art would know
how”).
To the extent that the method for preparing creatine
nitrate in the ’074 patent may not be completely identical
to the prior art, i.e., mixing with water as compared to

IN RE: THERMOLIFE INTERNATIONAL LLC
14
dissolving, the Board found that there was no evidence in
the record to suggest that the difference would be “critical.”
See Board Decision II, at *12. Instead, the Board found
that the ’074 patent itself taught that the difference in the
methods would not be critical to preparing creatine nitrate.
Id. (citing ’074 patent col. 15 ll. 49–59 (“[I]t will be under-
stood that such manufacture is not limited to the specific
order of steps or forms as disclosed . . . since many possible
manufacturing processes and sequences of steps may be
used to manufacture Amino Acid Compound implementa-
tions in a wide variety of forms.”). We conclude that the
Board’s findings are supported by substantial evidence.
ThermoLife also argues that the Board’s decision
should be reversed or vacated because the Board improp-
erly required it to demonstrate lack of enablement by clear
error rather than by preponderant evidence. ThermoLife
cites three sentences from the Board’s decision as evidence
that the Board applied the wrong standard in determining
whether the prior art lacked enablement. First, Ther-
moLife cites the Board’s statement that “[w]ithout suffi-
cient evidence to support a finding of clear error, we are
unwilling to find the express teaching of a nitrate of crea-
tine in four separate references to be ambiguous.” Id. at *8.
This is the same statement discussed above. As is clear
from that discussion, the Board’s statement is not related
to whether the prior art is enabling, but instead relates to
whether the prior art was ambiguous. We are not per-
suaded that the Board’s statement in the context of ambi-
guity is relevant to the standard it applied during its
separate discussion of whether the prior art is enabling.
ThermoLife additionally cites two other sentences from
the Board’s opinion that relate to enablement, but which
nonetheless fail to prove that the Board committed reversi-
ble error. In these statements, the Board explained that
ThermoLife has not “conclusively shown Dessaignes’ mix-
ing process does not produce creatine nitrate,” id. at *16,
and that the Board was not persuaded “that the findings of

IN RE: THERMOLIFE INTERNATIONAL LLC

15
Dessaignes are necessarily inaccurate,” id. at *17 (empha-
sis in original). These statements, however, do not ex-
pressly demonstrate that the Board applied an incorrect
standard, particularly where the Board had already cor-
rectly framed ThermoLife’s burden for proving a lack of en-
ablement in the immediately preceding paragraph. Id.
at *16 (“If Patent Owner can establish, by preponderance
of the evidence of record, that the skilled artisan cannot
make what is alleged in the prior art using the steps taught
in the prior art, only then is a presumed reliable prior art
reference deemed to be unreliable and ineligible as an an-
ticipatory reference as a matter of law.”) (emphasis added);
see also id. at *3.
But even were we to assume that by using the words
“conclusively” and “necessarily” the Board required more
than preponderant evidence, we nonetheless do not find re-
versible error. Because enablement is a question of law,
which we review de novo, on appeal we apply the Board’s
findings of fact to determine whether its ultimate legal con-
clusion is supported by preponderant evidence. See Morsa,
803 F.3d at 1376. Based on the record of this case, we con-
clude that it is.
The Board’s fact finding establishes that the method
taught by Dessaignes would enable a person of ordinary
skill in the art to prepare creatine nitrate. See Board De-
cision II, at *10–17. The Board further found that based
on the knowledge of the ordinarily skilled artisan in 2007,
to the extent experimentation would be required to prepare
creatine nitrate from Dessaignes’s method (e.g., to deter-
mine the concentration of nitric acid to use), such experi-
mentation would have been no more than routine. See id.
at *15, *17; see also Morsa, 803 F.3d at 1377; In re Wands,
858 F.2d 731, 737 (Fed. Cir. 1988). And to the extent it
would have been unclear whether creatine nitrate was in
fact made, the Board found that the skilled artisan in 2007
would have had many methods for confirming the product.
Board Decision II, at *15.

IN RE: THERMOLIFE INTERNATIONAL LLC
16
When the Board’s findings of fact are taken together,
ThermoLife’s argument that Dessaignes’s method would
not have enabled an ordinarily skilled artisan in 2007 to
prepare creatine nitrate is supported only by mere specu-
lation. Such speculation or conjecture fails to show that,
by a preponderance of the evidence, the prior art is not en-
abling. Accordingly, to the extent the Board applied the
incorrect standard, on this record, such error is harmless
and does not warrant reversal. See In re Watts, 354 F.3d
at 1369.
We have considered ThermoLife’s additional argu-
ments and find them unpersuasive. For the above de-
scribed reasons, we affirm the Board’s decision that claim 6
is anticipated.
AFFIRMED
C
OSTS
The parties shall bear their own costs.