Appeal No. 2004-2025
Application 10/120,498
applications under the judicially created doctrine of obviousness-type double patenting, the
involved patents and applications also appearing in a listing in the brief (page, page 4).4
Appellants state that appealed claims 3 through 6 “ do not stand or fall together” with the
other appealed claims (brief, pages 3-4). Thus, we decide this appeal based on appealed claims
3 and 44 with respect to the ground of rejection under § 103(a), and on no particular claim with
respect to the other grounds of rejection based on obviousness double patenting in view of
appellants’ position (see brief, pages 8-9). 37 CFR § 1.192(c)(7) (2003).
We affirm.
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the answer and to the brief for a complete exposition thereof.
Opinion
Considering first the ground of rejection under § 103(a), in order to review the
examiner’s application of prior art to a claim, we must first interpret the claim terms must by
giving them the broadest reasonable interpretation in light of the written description in the
specification, including the drawings, as it would be interpreted by one of ordinary skill in this
art. See, e.g., In re Morris, 127 F.3d 1048, 1054-55, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997).
In re Zletz, 893 F.2d 319, 321-22, 13 USPQ2d 1320, 1322 (Fed. Cir. 1989). The plain language
of appealed claim 44 specifies gasoline composites that are substantially free of oxygenates.
There is no definition in the specification for the claim language “substantially free of
oxygenates.” However, the specification does specify that “ethers,” which fall within the term
“oxygenates (specification, e.g., page 2, ll. 8-10), can be present in an amount of less than
0.5 wt. % (id., page 12, l. 27, to page 13, l. 1), and include methyl tertiary butyl ether (MTBE)
(id., e.g., page 2, ll. 13-14). The claimed gasoline composites of claim 44 further have an octane
number falling within the range of at least 90(R+M)/2 and a sulfur content falling within the
range of zero to less than 10 ppmw, and are in compliance with the California Predictive Model.5
4 Application 09/603,585 (answer, pages 7-8) is shown in the electronic records of the USPTO
to now be abandoned, and accordingly, the ground of rejection based thereon is moot.
5 Appellants explain that the California Predictive Model with respect to the Phase 2 and Phase
3 reformulated gasoline standards tabulated in specification Table 1 (see above note 3), showing
“Flat Limit,” “Averaging Limit” or “Average Limit” and “Cap Limit” on the amounts of
regulated gasoline composite ingredients,
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