Appeal No. 2004-1939
Application 10/120,497
Accordingly, since a prima facie case of obviousness has been established over the
applied prior art by the examiner, we have again evaluated all of the evidence of obviousness
and nonobviousness based on the record as a whole, giving due consideration to the weight of
appellants’ arguments in the brief. See generally, In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984).
Appellants argue that NOx emission reduction in the claimed gasoline composites “is
achieved particularly due to the control of sulfur to extremely low levels, a concept foreign to the
prior art, as discussed on pages 12 and 13 of the present specification,” because “the blending
can be controlled so that the gasoline product contains less than 10 ppmw sulfur,” thus offering
“low emissions in a substantially oxygen free gasoline” (brief, paragraph bridging pages 4-5,
emphasis in original, and page 7). Appellants contend, in this respect, that Jessup does not
disclose or suggest “the control of sulfur in order to obtain such a gasoline or the advantages
attendant therewith” (id., page 5). Appellants further argue that the required presence of MTBE
in the reduced NOx emission gasoline of Kaneko distinguishes the claimed gasoline composites
over this reference, because, in appellants’ view, this “suggests that the presence of an oxygenate
is an important consideration for reduction of emissions of NOx,” thus teaching away from the
claimed invention which “permits one to achieve reductions in NOx while being substantially
oxygenate free” (id., pages 5-6).
Appellants submit that while Kaneko discloses the preferred range of less than 20 ppmw,
one of ordinary skill in the art would economically “push the amount of sulfur” to the extent of
the disclosed 50 ppmw at which point damage to the exhaust gas cleaner is still avoided (see
Kaneko, col. 3, ll. 19-21), which “motivation actually directs one away from” the claimed
invention (id., page 6). Appellant further argues that refiners would find “no motivation to go
below 10 ppmw sulfur” in following the Phase 3 reformulated gasoline standards because this “is
a greatly added burden to the refiner” in the absence of sufficient motivation, which in this case
is provided by hindsight from reading appellants’ disclosure (id., pages 8-9).
We cannot subscribe to appellants’ positions. We fail to find in the disclosure on pages
12-13 of the written description in the specification any specific connection between reduced
NOx emissions of the claimed gasoline composite and the 10 ppmw sulfur contained therein, and
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