Appeal No. 2004-2025
Application 10/120,498
blending stocks and desired additives in a refinery to obtain the desired properties in the fuel
(e.g., col. 5, ll. 20-53). One of ordinary skill in the art would have readily recognized that the
Phase 3 reformulated gasoline standards provide limitations on the properties of the gasoline
fuels that are blended in refineries. Accordingly, we determined that, prima facie, one of
ordinary skill in this art routinely following the combined teachings of Jessup, Kaneko and the
Phase 3 reformulated gasoline standards would have blended gasoline stocks and desired
additives of Jessup as taught by Jessup and Kaneko following the script of the Phase 3
reformulated gasoline standards in the California Phase 3 Predictive Model, in the reasonable
expectation of arriving at blended unleaded gasoline complying with the Phase 3 reformulated
gasoline standards, including gasolines which fall within the average limit range for sulfur
content, including the lower end of that limit as taught by Kaneko. Indeed, we find that one of
ordinary skill in this art routinely following basic industrial product quality control concepts in
order to assure that the gasoline complies with the California Phase 3 Predictive Model, would
have further routinely tested the product of the blending operation during and after the batch of
unleaded gasoline is prepared.
Accordingly, we determine that, prima facie, one of ordinary skill in this art one of
ordinary skill in the art routinely following the combined teachings of Jessup, Kaneko and the
Phase 3 reformulated gasoline standards would have arrived at the claimed method of blending
unleaded gasolines encompassed by appealed claim 3, including each and every limitation
thereof, without recourse to appellants’ disclosure. See Dow Chem., 837 F.2d at 473, 5 USPQ2d
at 1531-32.
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 page 13 of the present specification,” because “the blending can be
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